State Of Washington v. Ricardo Liard Bruno ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 78327-1-1
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
RICARDO LIARDO BRUNO, )
)
Appellant. )
) FILED: August 5, 2019
HAZELRIGG-HERNANDEZ, J. — Judges must exercise discretion at
resentencing, but it does not follow that a judge must impose a different sentence.
On resentencing, Ricardo L. Bruno's exceptional sentence was again 55 months
above the standard range. Bruno argues that the trial court failed to exercise
discretion and asks us to remand for another resentencing hearing. But because
the colloquy regarding the meaning of our prior opinion demonstrates careful
consideration, we hold that the judge properly exercised discretion. Affirmed.
FACTS
Ricardo Bruno was tried and convicted for second degree rape. The jury
found that the offense was against a household member and was part of an
ongoing pattern of psychological, physical, or sexual abuse of a victim manifested
by multiple incidents over a prolonged period of time. That finding satisfied the
aggravated domestic violence circumstance codified as RCW 9.94A.535(3)(h)(i).
No. 78327-1/2
At sentencing, in addition to the domestic violence aggravating
circumstance found by the jury, the Honorable Bruce Heller considered two
additional aggravating circumstances, namely that Bruno should have known that
the victim was particularly vulnerable and that the victim was under the age of 18
and the crime was part of an ongoing pattern of sexual abuse. Judge Heller
sentenced Bruno to 125 months confinement, the top of the standard range, and
55 additional months as an exceptional sentence, for a total of 180 months. Bruno
appealed his sentence. This court reversed and remanded for resentencing
because his offender score had been improperly calculated and Judge Heller had
considered aggravating circumstances that had not been found by the jury.
Because Judge Heller had retired, the resentencing hearing was held
before the Honorable Kristin Richardson. The state asked the judge to reimpose
the same exceptional sentence of 180 months. Bruno asked the judge to consider
the minimum of the standard range.
Judge Richardson engaged in a colloquy with the parties regarding the
meaning of the opinion remanding the case for resentencing. She did not have a
transcript of the previous sentencing hearing. Specifically, she noted that ongoing
abuse manifested by multiple incidents over a prolonged period of time, which
Judge Heller appeared to consider as a separate aggravating circumstance, used
language comparable to an element of the aggravated domestic violence
circumstance. Judge Richardson also,acknowledged that the vulnerable victim
circumstance considered by Judge Heller was not found by the jury.
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Before pronouncing judgment, Judge Richardson noted that she had not
heard the trial testimony, but she had access to the certification for probable cause,
the jury instructions, the record on appeal, and our previous opinion. She listed
the jury's findings of the crime of conviction, rape in the second degree, which in
this case involved forcible compulsion, and the domestic violence aggravating
circumstance, which in this case involved an ongoing pattern of psychological,
physical, or sexual abuse of a family or household member, manifested by multiple
incidents over a prolonged period of time. Judge Richardson correctly noted that
those were the facts she could take into account when determining the sentence.
She elaborated on some of the factual details, including the victim's age. She also
noted that the sentencing range was lower because of the reduced offender score.
Judge Richardson sentenced Bruno to 114 months, the top of the new standard
range, and 55 more months as an exceptional sentence, for a total of 169 months.
Bruno appeals.
DISCUSSION
I. The resentencing judge appropriately exercised discretion.
Bruno argues that Judge Richardson failed to exercise her discretion on
resentencing. Failure to exercise discretion is an abuse of discretion subject to
reversal. State v. Garcia-Martinez, 88 Wash. App. 322, 330, 944 P.2d 1104 (1997);
see State v. Kennedy, 19 Wash. 2d 152, 154, 142 P.2d 247(1943); see also Brunson
v. Pierce County, 149 Wash. App. 855, 861, 205 P.3d 963(2009).
Bruno argues that Judge Richardson committed multiple errors that lead to
her giving inappropriate deference to Judge Heller's exceptional sentence. Bruno
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argues that she failed to read the transcripts of the evidence produced at trial,
believed Judge Heller correctly imposed the exceptional sentence, expressed
confusion about our previous decision, and imposed a harsher exceptional
sentence. We disagree.
Judge Richardson expressly stated at the hearing that she had access to
the record from the previous appeal. A copy of that complete record was not filed
with this appeal, but the transcript from the sentencing hearing held in April 2016
suggests there were at least 795 pages of transcribed proceedings in Bruno's first
appeal. While Judge Richardson stated that she did not hear the testimony, at no
point did she suggest that she failed to read the transcripts or familiarize herself
with the facts produced at trial. Absent other evidence, we will not assume that a
judge with access to the appropriate records failed to read them.
Neither does it appear that Judge Richardson was under the mistaken
impression that Judge Heller's view of the aggravating circumstances was correct,
nor that she was meaningfully confused about our prior decision. Judge
Richardson engaged the parties in a colloquy regarding the meaning of our
decision remanding the case for resentencing. Engaging in a colloquy with the
parties and allowing each to be heard regarding the meaning of an appellate court
decision is the most appropriate course of action for a trial court on remand. Judge
Richardson twice acknowledged that the vulnerable victim aggravating
circumstance was not found by the jury. Judge Richardson also noted that Judge
Heller erroneously considered the ongoing pattern of sexual abuse of a minor
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No. 78327-1/5
aggravating circumstance, RCW 9.94A.535(3)(g), separately from the domestic
Violence aggravating circumstance, RCW 9.94A.535(3)(h).
The only confusion that arose was because of the similarity in language
between those provisions. RCW 9.94A.535(3)(g) reads: "The offense was part of
an ongoing pattern of sexual abuse of the same victim under the age of eighteen
years manifested by multiple incidents over a prolonged period of time." As
provided to the jury in this case, the relevant parts of RCW 9.94A.535(3)(h) read
"The current offense involved domestic violence, as defined in RCW 10.99.020
. . . . (i) The offense was part of an ongoing pattern of psychological, physical, or
sexual abuse'of a victim . . . manifested by multiple incidents over a prolonged
period of time." The statutes use identical language to punish offenders who
engage in ongoing patterns of abuse manifested by multiple incidents over a
prolonged period of time. They vary in that RCW 9.94A.535(3)(h), the domestic
violence aggravating circumstance, protects anyone in a household relationship
with the offender from various forms of abuse and RCW 9.94A.535(g) protects any
child from sexual abuse.
Judge Richardson's careful consideration of the language in each
aggravating factor supports the conclusion that she exercised her discretion
regarding the facts of the case and the appropriate sentence. After comparing the
other aggravating circumstances, Judge Richardson concluded that she could only
consider the domestic violence aggravating circumstance found by the jury. While
Judge Richardson did mention the age of the victim as she listed the facts in more
detail, the parent-child relationship and pattern of abuse over a prolonged period
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No. 78327-1/6
of time were inherent in the domestic violence aggravating circumstance found by
the jury. Judge Richardson was entitled to consider the facts that supported the
domestic violence aggravator. It does not appear that she considered the victim's
age separately, and we find no error.
Bruno argues that Judge Richardson imposed a harsher exceptional
sentence on resentencing because 55 months is a larger percentage of 114
months than 125 months. But comparison with standard length sentences is
inconsistent with substantial and compelling reasons that justify imposition of an
exceptional sentence. State v. Ritchie, 126 Wash. 2d 388, 397,894 P.2d 1308(1995).
Because an exceptional sentence is determined by the discretion of the judge
based on the reasons that justify the exceptional sentence, not based on the
relationship to the standard range sentence, a 55 month exceptional sentence is
not automatically harsher when applied to a 114 month standard range rather than
a 120 month standard range. Here, because the 55 month exceptional sentence
was based on the facts supporting the domestic violence aggravating
circumstance, we find no error.
Finally, Bruno argues that this case should be assigned to a new judge on
remand. Because we affirm the judgment of the trial court, we need not address
that issue.
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Affirmed.
WE CONCUR:
I
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