Opinion
No. 37471-4-II.
October 13, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-01619-8, Roger A. Bennett, J., entered February 26, 2008.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Seventy days after John Tolbert Hobbs completed his incarceration for probation violations in Klickitat County, City of Vancouver police officers arrested him for possession of a stolen motor vehicle and for third degree driving with a suspended license. A jury found Hobbs guilty on both counts and he received a 58 month exceptional sentence based on the aggravating circumstance of rapid recidivism. Hobbs claims on appeal that the sentencing court should not have imposed the exceptional sentence because it did not have substantial, compelling reasons to depart from the sentencing range. Hobbs also raises several issues in his statement of additional grounds. Because Hobbs's arguments fail, we affirm the trial court's sentence.
RAP 10.10.
FACTS
On April 30, 2007, Department of Corrections probation officer, Jerrie Bennett, arrested Hobbs for violating his probation terms. A Clark County court imposed a 34 day sanction. After completing his sentence, Hobbs transferred to Klickitat County jail to serve time related to his failure to report and pay fines associated with his conviction for taking a vehicle without the owner's permission. Hobbs completed his sentence on July 6, 2007.
Seventy days later, on September 14, 2007, City of Vancouver police officers detained Hobbs on suspicion of driving a stolen truck. Denise Camacho observed Hobbs driving the vehicle after her son reported it stolen. Camacho contacted police and followed the truck until officers arrived. Once on the scene, Officer Donahue placed Hobbs under arrest and advised him of his Miranda rights. Hobbs waived his right to remain silent and told Donahue that he purchased the vehicle from a Hispanic man. Hobbs did not have a bill of sale and claimed not to know that the truck had been stolen.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Hobbs with one count of possession of a stolen vehicle with an aggravating circumstance and one count of third degree driving while license suspended. The charging documents notified Hobbs that the State would seek an exceptional sentence for possession of a stolen motor vehicle under RCW 9.94A.535(3)(t), which authorizes an exceptional sentence if the defendant committed the current offense shortly after being released from jail.
In violation of RCW 9A.56.068.
In violation of RCW 46.20.342(1)(c).
On February 13, 2008, a jury found Hobbs guilty of possession of a stolen vehicle and third degree driving while license suspended. Additionally, the jury found by special verdict that Hobbs committed his current offense shortly after his release from jail.
Prior to sentencing, the State submitted a sentencing memorandum documenting each of Hobbs's prior offenses. Based on Hobbs's lengthy criminal history and rapid recidivism, the State requested a 69 month sentence. The trial court sentenced Hobbs to 50 months, approximately midpoint in the standard sentencing range, and imposed an additional 8 month exceptional sentence based on his rapid recidivism.
Hobbs now appeals.
ANALYSIS
Hobbs challenges the trial court's finding that the brief period between his release from incarceration and his current offense provided substantial and compelling justification for the imposition of an exceptional sentence.
I. Rapid Recidivism
A trial court may depart from the standard range and impose an exceptional sentence where there are substantial and compelling reasons to do so. RCW 9.94A.535. Review of an exceptional sentence is governed by RCW 9.94A.585(4) and involves three steps. First, we ask if the record supports the trial court's reasons for imposing the exceptional sentence. State v. Garza, 123 Wn.2d 885, 889, 872 P.2d 1087 (1994) (citing State v. Allert, 117 Wn.2d 156, 163, 815 P.2d 752 (1991)). Second, we determine as a matter of law whether those reasons are "substantial and compelling," thus justifying a departure from the standard range. State v. George, 67 Wn. App. 217, 221, 834 P.2d 664 (1992) (quoting State v. Gutierrez, 58 Wn. App. 70, 78, 791 P.2d 275 (1990)), overruled on other grounds by State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). Third, we ask, under an abuse of discretion standard, if the sentence is clearly too excessive or lenient. Garza, 123 Wn.2d at 889 (citing Allert, 117 Wn.2d at 163). Hobbs claims his sentence is inappropriate under the second prong above because his recent parole status was neither a substantial or compelling reason for imposing an exceptional sentence. Additionally, Hobbs contends that the trial court's finding that "[a]n exceptional sentence is appropriate in this case" was insufficient to support an exceptional sentence. Clerk's Papers (CP) at 155.
The Garza test predates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). After Apprendi, any fact other than the fact of a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. See also State v. Kolesnik, 146 Wn. App. 790, 802, 192 P.3d 937 (2008) (noted that our Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), does not alter our review of the length of an exceptional sentence imposed on a jury's finding that the crime was aggravated by facts found beyond a reasonable doubt).
In 2005, the legislature made rapid recidivism a valid aggravating factor to support an exceptional sentence. RCW 9.94A.535(3)(t); Laws of 2005, ch. 68, § 3. A jury must make factual findings to support an exceptional sentence based on rapid recidivism because rapid recidivism requires finding facts beyond the defendant's prior convictions, such as the defendant's disregard for the law. State v. Hughes, 154 Wn.2d 118, 141-42, 110 P.3d 192 (2005), overruled on other grounds by, Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 466 (2006).
Prior to the 2005 amendment, Washington courts had recognized that rapid recidivism could serve as the basis for an exceptional sentence. For example in State v. Butler, the defendant committed a robbery and an attempted rape within 12 hours of his release from prison for a prior robbery. 75 Wn. App 47, 48-49, 876 P.2d 481 (1994). The trial court imposed an exceptional sentence based, in part, on the defendant being "particularly culpable by virtue of the rapidity with which he reoffended." Butler, 75 Wn. App. at 50. Division One of this court agreed with the sentencing court that the defendant's rapid recidivism reflected a disdain for the law which rendered him particularly culpable in committing the current offense. Butler, 75 Wn. App. at 54.
Similarly in State v. Saltz, Division Three of this court held that substantial and compelling evidence supported an exceptional sentence based on rapid recidivism when the defendant keyed his former girlfriend's daughter's car one month after being released from incarceration related to a previous violation of a no contact order against his former girlfriend. 137 Wn. App. 576, 579, 585-86, 154 P.3d 282 (2007). The court noted that the speed at which Saltz reoffended and the victim's identity distinguished his recidivism from "an ordinary case of recidivism" or a sentencing of a defendant with multiple prior offenses. Saltz, 137 Wn. App. at 585. The court affirmed the exceptional sentence, noting that an exceptional sentence based on RCW 9.94A.535(3)(t) is appropriate when "the circumstances show[ed] 'a greater disregard for the law . . .' based on the 'especially short time period between prior incarceration and reoffense.'" Saltz, 137 Wn. App. at 585-86 (quoting Butler, 75 Wn. App. at 54).
Although no Washington court has explicitly defined "shortly after being released from incarceration" for purposes of applying RCW 9.94A.535(3)(t), the Washington Supreme Court upheld a sentence based on rapid recidivism within three months of a defendant's release from custody. See State v. Hughes, 154 Wn.2d at 141.
In this case, substantial and compelling reasons supported the trial court's imposition of an exceptional sentence based on the aggravating factor of rapid recidivism. In 2007 alone, Hobbs was incarcerated three times. Shortly before his arrest, Hobbs was incarcerated in Klickitat County for probation violations stemming from his conviction for taking a motor vehicle without permission. As with the defendant in Saltz, both the brevity of the time between Hobbs's release and his arrest and the similarity of his previous and current crimes indicate "a greater disregard for the law" and, accordingly, greater culpability for his present crime.
Additionally, Hobbs claims that the exceptional sentence was inappropriate because the "trial court [failed to] make findings as to why this fact is sufficiently substantial and compelling to warrant imposing an exceptional sentence." Appellant's Br. at 6. The trial court relied on the jury's finding that Hobbs committed "the offense shortley [sic] after being released from incarceration under RCW 9.94A.535(3)(t)" in making its conclusion of law that "[a]n exceptional sentence is appropriate." CP at 155. Despite the brevity of this conclusion, Hobbs's argument fails because we review the trial court's conclusion of law de novo. State v. Morreira, 107 Wn. App. 450, 455, 27 P.3d 639 (2001) (citing State v. Morris, 87 Wn. App. 654, 659, 943 P.2d 329 (1997). Accordingly, the brevity of the trial court's conclusion does not bar us from concluding that Hobbs's rapid recidivism substantially and compellingly justified his exceptional sentence.
II. Statement of Additional Grounds for Review
A. Ineffective Assistance of Counsel
Hobbs argues that he received ineffective assistance of counsel from both of his trial attorneys and his appellate attorney. Regarding his trial counsel, he argues that they failed to (1) challenge the admission of an uncertified vehicle title into evidence; and (2) requested a continuance that set trial beyond the 60 day speedy trial date. He also alleges ineffective assistance of counsel because counsel refused his request to move for a dismissal based on a violation of his speedy trial right. Finally, he argues that he received ineffective assistance of appellate counsel because counsel chose not to raise issues regarding Hobbs guilt on appeal.
To show ineffective assistance of counsel, Hobbs must show both that counsel's performance was deficient and that the deficient performance prejudiced him. State v. Cienfuegos, 144 Wn.2d 222, 226-27, 25 P.3d 1011 (2001) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 687). Prejudice occurs when but for the deficient performance, the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing In re Pers. Restraint of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992)). In other words, Hobbs bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the trial outcome would have differed. Cienfuegos, 144 Wn.2d at 227 (citing Strickland, 466 U.S. at 694).
"Deficient performance is not shown by matters that go to trial strategy or tactics." Cienfuegos, 144 Wn.2d at 227 (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)). Courts maintain a strong presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (citing State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995)).
Hobbs's arguments regarding ineffective assistance are flawed because he has not provided any evidence that his counsel's decisions regarding the appropriate way to challenge evidence, address a continuance, or select issues for appeal were something other than trial strategy, or that they were objectively unreasonable. Regarding the uncertified vehicle title, Hobbs refers to a pretrial hearing where the State requested a continuance to obtain a certified copy of the vehicle title. Hobbs claims that the document was admitted into evidence and that "both the defense attorney, and the procecutor [sic] collaborated in allowing such absurd evidence." SAG at 4. In fact, defense counsel objected not only to the admission of the title but any reference to it at trial. The trial court sustained the objection and did not admit the title into evidence.
As to the continuance, both the State and defense counsel requested a continuance to interview witnesses prior to trial. Both parties argued that the continuance was required because the other party failed to comply with discovery deadlines. The trial court has discretion to grant a continuance in these situations. See State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984) (citing Stat v. Miles, 77 Wn.2d 593, 597-98, 464 P.2d 723 (1970)) (noting that defense counsel may request a continuance over his client's objection even when it will result in the setting of trial beyond the 60-90 day speedy trial period). Although Hobbs did not consent to the continuance, his counsel was not unreasonable in requesting it and his request did not deprive Hobbs of effective assistance of counsel.
Finally, Hobbs supports his claim of ineffective assistance of appellate counsel by a flat assertion that her decision not to raise the issue of guilt on appeal "was not tactical." SAG at 12. Later, Hobbs rebuts his claim by explaining that counsel told him that she chose not to appeal issues regarding guilt because of credibility issues created by his criminal history. In the absence of additional information, we cannot conclude that counsel's tactical decision not to pursue the issue of guilt on appeal was unreasonable.
B. Grounds Not Sufficient for Review
Although a defendant is not required to cite to the record or authority in his SAG, he must still "inform the court of the nature and occurrence of alleged errors," and we are not required to search the record to find support for the defendant's claims. RAP 10.10(c). Hobbs's remaining issues are not sufficient to allow review, and this court need not reach them. Specifically, Hobbs states (1) that the occurrence or non-occurrence of Western State competency evaluation violated a court order; (2) that two vague statements by the trial court constituted judicial misconduct; (3) that the prosecutor improperly defined reasonable doubt in closing argument; (4) a vague allegation possibly claiming that trial counsel has a conflict of interest because she served as a court commissioner; (5) a vague allegation related to "missing transcripts"; and (6) an incomprehensible argument consisting only of a list of "requested evidence." SAG at 1. These claims are not specific enough for us to address.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and QUINN-BRINTNALL, J., concur.