State Of Washington v. Kero Riiny Giir ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE £5 <-'~ O
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Respondent,
No. 69393-0- 5; ™<->
v.
UNPUBLISHED OPINION
KERORIINYGIIR,
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Appellant. FILED: April 28, 2014
Dwyer, J. — Kero Giir pleaded guilty to murder in the first degree and
assault in the third degree. On this, his fourth appeal, Giir contends that the trial
court erred by imposing a community custody condition that directed mental
health evaluation and treatment. This is so, he asserts, because a sentencing
report prepared by the Department of Corrections (DOC) after his second appeal
does not qualify as a presentence report. In his statement of additional grounds,
Giir also asks this court to remand for reconsideration of his request for an
exceptional sentence downward. We reject both contentions and affirm.
I
In 2007, Giir pleaded guilty to murder in the first degree and assault in the
third degree, after stabbing his girl friend to death and cutting a bystanderwho
attempted to stop him. At Giir's initial sentencing hearing, Giir requested an
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exceptional sentence below the standard range. The trial court denied Giir's
request and imposed a standard range sentence.
The trial court sentenced Giir to 300 months in custody for the murder
conviction and 8 months in custody for the assault conviction, to be served
concurrently. The trial court also imposed 24 to 48 months of community custody
and, as a condition thereof, ordered Giir to obtain a mental health evaluation and
follow treatment recommendations. Giir appealed. In an unpublished opinion,
we held that the trial court had erred by not making findings as to whether Giir
was a mentally ill person and that his condition likely influenced his offenses, as
required by statute. State v. Giir, noted at 153 Wash. App. 1015, 2009 WL
4024840, at *1 (2009) (Giir I). We remanded for further proceedings related to
the imposition of the community custody condition. Giir I, 2009 WL 4024840, at
*5.
On April 23, 2010, the trial court entered a sentence modification, again
imposing mental health evaluation and treatment as a condition of community
custody. Giir appealed. We again held that the trial court had erred by imposing
the condition, this time because DOC had not prepared a statutorily-required
presentence report. State v. Giir, noted at 160 Wash. App. 1026, 2011 WL 768839,
at *2 (2011) (Giir II). We reversed the condition and remanded. Giir II, 2011 WL
768839, at *4.
Upon remand, the trial court ordered DOC to prepare a presentence
report. The trial court's order was entered on March 22, 2011. DOC submitted
its presentence investigation report on July 28, 2011. On August 16, 2011, the
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trial court issued Appendix F, entitled "Additional Conditions of Sentence."
Because the trial court had not held a sentencing hearing before issuing the
conditions, Giir appealed for the third time. This appeal was dismissed as moot
after the trial court struck Appendix F.
On September 19, 2012, the trial court held its final sentencing hearing.
The DOC employee who had prepared the presentence report testified at this
hearing. At the conclusion of the hearing, the trial court stated, "I would be
remiss as a trial judge not to order some type of mental health treatment which
this man so desperately needs." The trial court once again imposed mental
health evaluation and treatment as a term of community custody. In its order,
filed on September 19, 2012, the trial court held,
This condition of sentence is based on the Department of
Corrections report, the evaluations conducted by Dr. Wheeler and
Dr. Kriegler, as well as the presentence reports submitted by both
counsel. The Court additionally orders this condition because it
finds, based on the same, that the defendant is a mentally ill person
as defined in RCW 71.24.025 and that this condition is likely to
have influenced the underlying offense.
Giir once again appeals.
II
Giir contends that the trial court erred by ordering a mental health
condition of community custody, because the trial court did not have the benefit
of a DOC presentence report when it imposed the condition. This is so, he
asserts, because the presentence report must be written before any sentencing
hearing occurs, which in this case was 2007. Giir argues, in the alternative, that
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No. 69393-0-1/4
the 2012 hearing was not a "resentencing" hearing. Giir's contentions are not
well taken.
Where a trial court determines that mental health evaluation and treatment
may be a desired condition of community custody, the trial court must order DOC
to complete a presentence report before imposing such a condition. Former
RCW 9.94A.500(1) (2006). If a trial court imposes mental health conditions
without considering a DOC presentence report, it errs. State v. Lopez. 142 Wn.
App. 341, 353-54, 174 P.3d 1216 (2007).
Giir contends that the trial court did not have the benefit of a DOC
presentence report when it imposed a mental health condition in 2012 because
only a report filed before the 2007 hearing would qualify as a "presentence
report." Giir's assertion simply has no basis in law. A final sentence can be
rendered in more than one sentencing hearing. State v. Kilqore. 167 Wash. 2d 28,
37, 216 P.3d 393 (2009) ("'[T]he finality of that portion of the judgment and
sentence that was correct and valid at the time it was pronounced' is unaffected
by the reversal of one or more counts." (quoting In re Pers. Restraint of Carle, 93
Wn.2d31.34, 604 P.2d 1293 (1980))): accord State v. Rowland, 160 Wash. App.
316, 331,249P.3d635(2011)affd, 174Wn.2d 150, 272 P.3d 242 (2012)
("Unlike the exceptional sentence (which we authorized the resentencing court to
leave intact in Rowland II), Rowland's standard range sentence was not final.").
Any event that occurs prior to the relevant final sentencing decision is a "prior"
event with respect to that decision. CI State v. Collicott. 118 Wash. 2d 649, 664-65,
827 P.2d 263 (1992) (holding that a conviction entered before the date of
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No. 69393-0-1/5
resentencing, although entered after the date of the initial sentencing, was a
"prior conviction" for purposes of calculating an offender score). Thus, a report
prepared before the hearing at which the relevant, final sentencing decision is
made qualifies as a "presentence report."
When we reversed and remanded Giir's condition of community custody,
that portion of Giir's sentence was not yet final. The sentencing hearing at which
the relevant, final condition of community custody was entered occurred on
September 19, 2012. Any report submitted before that date that related to the
not-yet-imposed condition thus qualified as a "presentence report." DOC
submitted its report on July 28, 2011. Accordingly, the trial court had the benefit
of a DOC "presentence report" when it imposed the mental health condition of
community custody.
Giir's alternative contention, that the 2012 hearing was not a
"resentencing," also lacks merit. Giir correctly asserts that "[t]he trial court's
discretion to resentence on remand is limited by the scope of the appellate
court's mandate." Kilqore. 167 Wash. 2d at 42. However, when an appeals court
gives an "open ended" mandate on remand, the trial court may exercise its
discretion to consider resentencing. Kilqore, 167 Wash. 2d at 42.
In reversing the mental health condition of Giir's community custody on his
second appeal, we stated, "Because the trial court did not order the statutorily-
required presentence report prepared by the DOC and did not rely on such a
report in ordering Giir to undergo mental status evaluation and treatment, we
reverse this condition of community custody and remand." Giir II. 2011 WL
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No. 69393-0-1/6
768839, at *4. We did not provide specific instructions to the trial court. Without
specific instructions, the trial court had the discretion to consider resentencing
Giir with respect to that condition. When the trial court herein exercised its
discretion, its reconsideration of Giir's condition of community custody was
necessarily a "resentencing."
The trial court did not err by imposing a mental health condition on Giir's
community custody.
Ill
In his statement of additional grounds, Giir asks us to remand his
sentence in order for the trial court to reconsider his request for an exceptional
sentence below the standard range. A party who seeks review of the trial court's
decision has the burden to provide a record adequate to establish the errors
claimed. State v. Wade. 138 Wash. 2d 460, 464, 979 P.2d 850 (1999). An
"insufficient record on appeal precludes review of the alleged errors."
Bulzomi v. Deo't of Labor & Indus.. 72 Wash. App. 522, 525, 864 P.2d 996 (1994).
Absent an affirmative showing of error, the trial court's judgment is presumed to
be correct. Wade. 138 Wash. 2d at 464.
Giir has not provided any record pertaining to the trial court's decision to
impose a standard range sentence. With no record from which to review Giir's
claim of error, we must presume that the trial court did not err by imposing a
standard range sentence. We therefore affirm Giir's standard range sentence.
No. 69393-0-1/7
Affirmed.
We concur: