State Of Washington v. Pedro Godinez, Jr. ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48865-5-II
Respondent,
v.
PEDRO GODINEZ JR. UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Pedro Godinez Jr. appeals his sentence. We conclude that the trial court
did not err by imposing an exceptional sentence or an excessive one. We affirm.
FACTS
A jury found Godinez guilty of attempted murder in the first degree (count I), kidnapping
in the first degree (count II), and robbery in the first degree (count III). By special verdict, the jury
found that Godinez was armed with a firearm for each count. Also by special verdict, the jury
found two aggravating circumstances for each count: Godinez manifested deliberate cruelty to the
victim and demonstrated or displayed an egregious lack of remorse. Finally, the jury also found
Godinez guilty of unlawful possession of a firearm in the first degree (count V).
48865-5-II
The trial court sentenced Godinez to an exceptional sentence of 607.75 months of
confinement1 because the jury found aggravating circumstances. The trial court entered findings
of fact and conclusions of law for the exceptional sentence, based on the jury’s findings of the
aggravating factors. The actual document did not contain new findings. The document stated “see
attached findings of jury.” Clerk’s Papers (CP) at 60. Based on those findings by the jury, the
court determined “to run Count 5 consecutively to Counts 1 and 2 as an exceptional sentence.” CP
at 60.
Godinez appealed his conviction and sentence. In an unpublished opinion, we remanded
for resentencing because the trial court improperly added a point to his offender score. 2 We did
not reverse the exceptional sentence. Godinez, No. 46153-II, slip op. at 8.
At resentencing, with the corrected offender score, the standard ranges for each of
Godinez’s convictions including enhancements were as follows: attempted murder was 313.5 to
397.5 months of confinement; kidnapping in the first degree was 111 to 128 months of
confinement; and unlawful possession of a firearm in the first degree was 57 to 75 months of
confinement.
The trial court stated that multiple aspects of sentencing remained unchanged on remand:
the criminal history, the convictions entered, and the exceptional circumstances found by the jury.
The court called the case “an egregious case . . . not a case you forget.” Report of Proceedings
(RP) at 28-29. The trial court noted that the only change was one less point on Godinez’s offender
1
The standard ranges for each of Godinez convictions with the incorrect offender score including
enhancements were as follows: attempted murder in the first degree was 337.5 to 429.75 months;
kidnapping in the first degree was 111 to 128 months; and unlawful possession of a firearm in the
first degree was 67 to 89 months. The court vacated Godinez’s conviction for robbery in the first
degree.
2
State v. Godinez, No.46153-6-II (Wash. Ct. App. Dec. 15, 2015) (unpublished),
https://www.courts.wa.gov/opinions.
2
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score. The court stated, however, that the same sentencing range, or even higher, was within its
available sentencing options on remand. For those reasons, the trial court chose not to depart
significantly from the prior sentencing range and after considering the change in calculations from
the new offender score, sentenced Godinez to an exceptional sentence of 600 months of
confinement. The court again entered findings of fact and conclusions of law for the exceptional
sentence, which included the jury’s findings of the aggravating factors.3 Godinez appeals.
ANALYSIS
As an initial matter, the State argues that we should decline to review the issues on appeal
because Godinez could have raised this issue on his first appeal and did not. We conclude that the
issues are not barred and consider the merits of the appeal.
“The general rule is that a defendant is prohibited from raising issues on a second appeal
that were or could have been raised on the first appeal.” State v. Mandanas, 163 Wn. App. 712,
716, 262 P.3d 522 (2011). However, we have also stated that a defendant “may raise sentencing
issues on a second appeal if, on the first appeal, the appellate court vacates the original sentence
or remands for an entirely new sentencing proceeding, but not when the appellate court remands
for the trial court to enter only a ministerial correction of the original sentence.” State v. Toney,
149 Wn. App. 787, 792, 205 P.3d 944 (2009).
Similarly to our decision in Toney, we unequivocally “remand[ed] for resentencing.”
Godinez, No. 46153-6-II, slip op. at 8. Godinez’s sentence was not final because our remand did
not limit the trial court to making a ministerial correction. Accordingly, we consider the appeal.
3
The court attached the jury’s findings to the written findings and conclusions and stated that
based on those findings, the court determined “to run Count 5 consecutively to Counts 1 and 2 as
an exceptional sentence.” CP at 174.
3
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I. IMPOSITION OF EXCEPTIONAL SENTENCE
Godinez argues that even assuming the aggravating factors found by the jury were
supported by substantial evidence,4 the facts do not, as a matter of law, create “substantial and
compelling reasons” to justify an exceptional sentence. Br. of Appellant at 4. Godinez argues that
the trial court’s findings of fact and conclusions of law were insufficient to permit review because
the court did not provide any reasoning to justify the exceptional sentence. We disagree with
Godinez on both points.
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, permits a court to order
a sentence above the standard range “if it finds . . . that there are substantial and compelling reasons
justifying an exceptional sentence.” RCW 9.94A.535. A sentence outside the standard range may
be reversed if “either that the reasons supplied by the sentencing court are not supported by the
record which was before the judge or that those reasons do not justify a sentence outside the
standard sentence range for that offense; or . . . that the sentence imposed was clearly excessive or
clearly too lenient.” RCW 9.94A.585(4).
Review of a court’s imposition of an exceptional sentence is governed by RCW 9.94A.585.
An appellate court determines the appropriateness of an exceptional sentence by answering three
questions:
“(1) under a clearly erroneous standard, there is insufficient evidence in the record
to support the reasons for imposing an exceptional sentence; (2) under a de novo
standard, the reasons supplied by the sentencing court do not justify a departure
from the standard range; or (3) under an abuse of discretion standard, the sentence
is clearly excessive or clearly too lenient.”
State v. Feely, 192 Wn. App. 751, 770, 368 P.3d 514 (quoting State v. France, 176 Wn. App. 463,
469, 308 P.3d 812 (2013)), review denied, 185 Wn.2d 1042, 377 P.3d 762 (2016). Because
4
Godinez does not challenge the jury’s finding of either aggravating factor.
4
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Godinez challenges the trial court’s reasons for imposing the exceptional sentence and argues the
trial court failed to properly include substantial and compelling reasons within its findings of fact
and conclusions of law to justify the exceptional sentence, we review the issue de novo. Feely,
192 Wn. App. at 770.
Prior to 2004, Washington courts allowed sentence enhancements to be imposed based on
the trial court’s own factual findings, as opposed to the jury’s, and without requiring proof beyond
a reasonable doubt. In re Pers. Restraint of Jackson, 175 Wn.2d 155, 159, 283 P.3d 1089 (2012).
In 2004, the Supreme Court held that all factual findings necessary to impose a sentence beyond
the statutory range must be submitted to the jury and proved beyond a reasonable doubt. Blakely
v. Washington, 542 U.S. 296, 301-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Now, if the jury
finds the alleged aggravating circumstances beyond a reasonable doubt, the trial judge is bound by
the jury’s finding and left “only with the legal conclusion of whether the facts alleged and found
were sufficiently substantial and compelling to warrant an exceptional sentence.” State v.
Suleiman, 158 Wn.2d 280, 290-91, 143 P.3d 795 (2006); State v. Williams–Walker, 167 Wn.2d
889, 899, 225 P.3d 913 (2010); State v. Hale, 146 Wn. App. 299, 306, 189 P.3d 829 (2008); see
also RCW 9.94A.537(6).
The legislature has since amended our statutes to conform to Blakely, but RCW 9.94A.535
still requires a trial court to enter findings of fact and conclusions of law to justify sentences outside
the standard range. Hale, 146 Wn. App. at 306. Specifically, it provides that “the court shall set
forth the reasons for its decision in written findings of fact and conclusions of law.” RCW
9.94A.535.
5
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Here, the jury found two aggravating factors based on the evidence presented at trial: that
Godinez acted with deliberate cruelty and a lack of remorse. By incorporating the jury’s findings
into its written findings and concluding that an exceptional sentence upward was appropriate based
on the jury’s findings, the trial court found substantial and compelling reasons justifying the
exceptional sentence. Its reasons for imposing an exceptional sentence are clear and reviewable.
RCW 9.94A.535 does not require the court to recite the words “substantial and compelling,” which
would not substantively add to the court’s reasoning for imposing the sentence. Therefore, the
trial did not err by imposing the exceptional sentence.
II. EXCESSIVE EXCEPTIONAL SENTENCE
Godinez argues that the exceptional sentence imposed was excessive and should be
reversed.5 We disagree.
A sentence outside the standard range may be reversed if the reviewing court finds that the
sentence imposed was clearly too excessive. RCW 9.94A.585(4)(b). “Whether a sentence is
clearly too excessive is reviewed for an abuse of discretion.” State v. Mann, 157 Wn. App. 428,
441, 237 P.3d 966 (2010). “A trial court abuses its discretion if its decision is based on manifestly
unreasonable or untenable grounds.” Mann, 157 Wn. App. at 441.
5
Godinez also argues that the trial court erred because it “in effect” imposed “essentially the same
sentence” as the initial sentence. Br. of Appellant at 10. Godinez cites no authority for his
argument that upon reduction of an offender score, the trial court must reduce the length of a
properly imposed exceptional sentence. He also cites no authority that the trial court lacks the
discretion to impose “essentially the same sentence” after remand to correct an offender score. Br.
of Appellant at 10. We do not consider conclusory arguments that are unsupported by citation to
authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.3d 549 (1992).
Failure to provide argument and citation to authority in support of an assignment of error precludes
appellate consideration under RAP 10.3(a)(6). Cowiche Canyon, 118 Wn.2d at 809. Regardless,
the trial court did not sentence Godinez with the same sentence.
6
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When a sentencing court bases an exceptional sentence on proper reasons, the sentence is
excessive only if its length, in light of the record, “‘shocks the conscience.’” State v. Knutz, 161
Wn. App. 395, 410-11, 253 P.3d 437 (2011) (quoting State v. Kolesnik, 146 Wn. App. 790, 805,
192 P.3d 937 (2008) (internal quotations omitted)). “A sentence that shocks the conscience is one
that ‘no reasonable person would adopt.’” Knutz, 161 Wn. App. at 411 (quoting State v. Halsey,
140 Wn. App. 313, 324-25, 165 P.3d 409 (2007)).
Here, the jury found both of the aggravating factors that the State alleged, i.e. deliberate
cruelty to the victim and an egregious lack of remorse. The jury’s findings were based on the
evidence presented at trial. The court sentenced Godinez to the standard range on each count. The
exceptional sentence involved a consecutive sentence on the unlawful possession of a firearm in
the first degree conviction. The total sentence imposed on each count was significantly less than
the statutory maximum terms the legislature provided for each of these offenses based on
Godinez’s offender scores: either imprisonment for life, for counts 1 and 2, or 10 years for count
5. See RCW 9A.28.020, RCW 9A.32.030, RCW 9A.32.040; RCW 9A.40.020; RCW 9A.56.200.
Given that the trial court has “‘all but unbridled discretion in setting the length of the
sentence,’” we conclude that the trial court’s exceptional sentence does not “shock the
conscience,” especially, as the trial court noted, in light of the egregious nature of the case. Knutz,
161 Wn. App. at 411 (quoting Halsey, 140 Wn. App. at 325).
7
48865-5-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Bjorgen, C.J.
Sutton, J.
8