Opinion
No. 36966-4-II.
March 24, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-02451-6, Katherine M. Stolz, J., entered October 12, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Hunt, J.
UNPUBLISHED OPINION
Stephen Kerr appeals the trial court's decision to deny him a Special Sex Offender Sentencing Alternative (SSOSA), RCW 9.94A.670. He argues that the trial court failed to consider a victim's sentencing preferences, that the lack of counsel during his presentence investigation violated his right to representation, and that he received ineffective assistance of counsel at sentencing. We affirm.
FACTS
On June 29, 2007, the State charged Kerr by amended information with two counts of first degree rape of a child against his daughter, who was born February 6, 2000. He pleaded guilty to both counts. The State amended the information as part of a plea agreement. Under this agreement, Kerr remained eligible for a SSOSA, but the State reserved its right to recommend against it after completion of the psychosexual evaluation, polygraphy, and presentencing investigation. The trial court accepted Kerr's guilty plea after finding it was knowing, voluntary, and intelligent.
Michael Comte completed Kerr's psychosexual evaluation, which focused on the sexual abuse of the victim as well as Kerr's psychological background. At the initial interview, Kerr revealed that he is the father of four children with his wife and that he earned his living as a religious leader. After this initial interview and before Kerr submitted to a sexual history polygraph, he admitted to Comte that when he was 31 years old, he sexually assaulted a different child victim, age two. He refused to give the victim's name or where the different instances of abuse occurred. The polygraph report confirmed the existence of the second victim and the veracity of Kerr's admissions regarding both victims.
Comte concluded that Kerr was chronically depressed, sexually obsessed, and pedophilic. But Comte also wrote that "[b]ecause [Kerr] is in the category of an `incestuous offender' without other static and dynamic factors that would suggest elevated risk i.e. criminal history, history of alcohol or drug abuse, relationship instability, etc., he presents at low risk to sexually reoffend." Clerk's Papers (CP) at 65. He wrote that Kerr needed "long-term clinical attention and pharmacological interventions" and that Kerr "has the capacity for change and in my opinion he is presenting with a positive prognosis." CP at 66.
The Department of Corrections (DOC) completed a presentence investigation report. Kerr told the DOC "he was willing to discuss most of the information but wanted his attorney present before answering certain questions." CP at 96. The investigator wrote, "[Kerr] agreed to let me know what questions or issues he was unwilling to discuss when they arose." CP at 96. Kerr told the investigator that he did not want to discuss his offenses in detail, but he indicated "the account he gave Mr. Comte was accurate." CP at 96. The investigator also wrote, "Kerr admits he disclosed a second victim during the interview preceding his polygraph. He refused to discuss the details of the offense and said he would need his attorney present for questions related to that victim." CP at 97.
After detailing Kerr's crimes and personal history, the DOC recommended incarceration within the standard range followed by community custody for life. In reaching its recommendation, it considered several aspects of the sexual abuse and Kerr's circumstances. It also considered that he admitted to thoughts of sexual abuse of his children while they were in utero. The report cited Kerr's failure to name a second, unidentified victim, who he admitted to sexually abusing when the victim was two years old, as evidence of his lack of honesty and disregard for his victims' suffering.
As the DOC wrote in its report: "His abuse of [the victim] included touching her vaginal area with his hands, penis and mouth, having her perform fellatio on him, showing her pornography and photographing her genitalia." CP at 101.
At the October 12 sentencing hearing, the trial court confirmed on the record that Kerr understood he faced a standard range sentence of 120 to 160 months' incarceration should it decline to order a SSOSA. The State argued for 160 months' incarceration on both counts.
During sentencing, the deputy prosecutor recited his own experience as a father and stated that three-year-old children have memories from two years of age. Arguing against the SSOSA, the State cited the existence of an additional unidentified victim, Kerr's proposed placement with his father in Yakima who suffers from a pornography addiction, and the fact that Kerr would be managing rental properties potentially occupied by families with children.
Kerr's counsel argued that he knew Comte to be reliable and conservative with respect to recommending a SSOSA. He also argued that under the applicable statute, the trial court must give great weight to the wishes of a victim with respect to granting a SSOSA.
Several family members, including Kerr's wife, submitted comments to the trial court requesting a SSOSA. Kerr's wife wrote a letter to the trial court that reads in its entirety: "I am writing to make sure it is clearly stated for you and the court that I would like to see Stephen receive the SOSA [sic] program. I think it would be better to see him rehabilitated. If you have any questions, please feel free to call. My number is. . . ." CP at 74.
After reviewing the record and listening to counsels' arguments, the trial court heard from Kerr. He expressed remorse and asked for a SSOSA. After he finished, the trial court began its ruling by expressing its concern regarding his lack of candor about the other victim's identity. Kerr then interrupted and said, "Your honor, I told the DOC that I wanted my lawyer present during the interview, twice; and [the DOC] refused and said that I'd go without the PSI, and I'm prepared to give the name of the victim even now." Report of Proceedings (Oct. 12, 2007) (RP) at 20.
The trial court then continued with the sentencing:
The Court: Well, people may say in confidence, well, a two-year-old isn't going to remember. I mean, Counsel, my earliest memory is being in a crib in a jersey with my books, and I was two at that time; and I certainly didn't have anything traumatic that was in connection with that memory which this child may well had, if it's being raped at the age of two by this individual.
I'm not going to give him a SSOSA. I don't think he's a candidate for it. I also am mindful of the fact that I have the community to look after. We have multiple victims, less than candor; and quite frankly, I think Mr. Kerr is sorry more for himself —
[Kerr]: No.
The Court: — than for his daughter whom he raped repeatedly in the time she was three to the time she disclosed at the age of seven. That's four years of hell for that child, and that's from her parent who is supposed to be cherishing her, who is supposed to be caring for her, and who is using her as a vehicle for his own sexual desires.
Addiction to pornography? I mean, you've had plenty of opportunity. You're an intelligent man. You knew you had a problem. You could have sought treatment. When the disclosure came, you moved immediately to Yakima. That doesn't give me any confidence that you're following through.
RP at 20-22. The trial court denied Kerr's request for a SSOSA and sentenced him to 140 months' incarceration. He appeals.
ANALYSIS
Kerr first contends that the trial court violated RCW 9.94A.670 when it failed to enter written findings and consider a victim's sentencing preferences. By "victim," he does not mean his relative who was the physical victim of the rape but, rather, his wife. Under RCW 9.94A.670(1)(c), a non-offending parent of a minor child is a victim for purposes of determining whether a SSOSA is appropriate. His wife, the victim's mother, is therefore a victim under the statute. RCW 9.94A.670(1)(c).
Under RCW 9.94A.670(4), the trial court must consider several factors in determining whether to grant a SSOSA. In part, it must consider the impact on the community, whether the sentence is too lenient, the offender's amenability to treatment, risks to the victim or others of a similar age and circumstance as the victim, and the victim's opinion regarding whether to grant a SSOSA. RCW 9.94A.670(4). Further, under the statute, "[t]he court shall give great weight to the victim's opinion whether the offender should receive a treatment disposition under this section. If the sentence imposed is contrary to the victim's opinion, the court shall enter written findings stating its reasons for imposing the treatment disposition." RCW 9.94A.670(4).
Kerr argues that this language requires the trial court to enter written findings of fact, but the plain language of the statute contradicts this position. In the statute, the phrase "treatment disposition" is synonymous with a SSOSA. RCW 9.94A.670(4). Kerr's interpretation would impermissibly render the final portion of the sentence, "for imposing the treatment disposition," meaningless and superfluous. RCW 9.94A.670(4); see State v. Keller, 143 Wn.2d 267, 277, 19 P.3d 1030 (2001). Such interpretations are invalid as "courts do not engage in statutory interpretation of a statute that is not ambiguous." Keller, 143 Wn.2d 267. Thus, RCW 9.94A.670(4) requires the trial court to enter written findings when it orders a SSOSA against the victim's wishes; it does not require written findings when the trial court chooses not to impose a SSOSA.
Kerr's argument that the trial court abused its discretion by not giving the victim's preference regarding the imposition of a SSOSA likewise fails. The trial court reviewed Kerr's sentencing memorandum with his wife's letter attached before the hearing. Although a victim's opinion carries great weight under RCW 9.94A.670(4), it is the trial court that makes the final determination whether to grant a SSOSA and, absent a showing of an abuse of discretion, we will not disturb it on appeal. State v. White, 123 Wn. App. 106, 114, 97 P.3d 34 (2004). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). The trial court does not abuse its discretion simply by disagreeing with a victim; the court has other factors it must also weigh. RCW 9.94A.670(4). In this case, the trial court weighed the community interests, the seriousness of the offense, Kerr's lack of candor, the existence of multiple victims, and his self-interest in a lighter sentence masquerading as a desire for treatment when it imposed a standard range sentence. In weighing these factors, the trial court did not abuse its discretion and Kerr's argument fails.
Kerr further contends that the trial court violated the real facts doctrine as codified in RCW 9.94A.530(2) by discussing its own childhood memories and hearing the prosecutor's experiences as a father. As our Supreme Court explained in Grayson, the trial court brings its knowledge and experience into the courtroom with it. State v. Grayson, 154 Wn.2d 333, 339, 111 P.3d 1183 (2005). Merely discussing, by way of analogy, an experience the court had does not violate the real facts doctrine, which prevents "ex parte contact with the judge, sua sponte investigation and research by a judge, and sentencing based on speculative facts." Grayson, 154 Wn.2d at 340. This is especially true here, where like the defendant in Grayson, Kerr did not object to any of the statements made during sentencing. 154 Wn.2d at 339. Thus, Kerr's argument that the trial court violated RCW 9.94A.530(2) also fails.
"In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing." RCW 9.94A.530(2).
Although the trial court did not violate the real facts doctrine with its statement, we note that if the trial court discusses personal experiences when issuing its ruling, it should take care to comply with this doctrine.
Citing no on-point authority, Kerr also argues that the trial court commented on his silence during the sentencing phase. As this was a bench trial and the comment came from the trial court during sentencing for a different crime, his argument lacks merit. See, e.g., State v. Romero, 113 Wn. App. 779, 787, 54 P.3d 1255 (2002) (explaining that the law prohibits comments on a defendant's silence as substantive evidence of guilt). Here, the trial court did not use Kerr's silence as evidence of his guilt of that crime but rather as a factor in sentencing for a different crime.
Kerr next contends that the State violated his right to counsel when the DOC conducted his presentence investigation outside the presence of his attorney. Relying on State v. Everybodytalksabout, 161 Wn.2d 702, 708, 166 P.3d 693 (2007), Kerr argues the presentence investigation is a critical stage of the proceedings and, therefore, his counsel must be present to protect his Sixth Amendment rights.
As the Supreme Court held in Brewer v. Williams, the right to counsel attaches when the State initiates adversarial proceedings against the defendant. 430 U.S. 387, 401, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). This right "applies to every `critical stage' of the proceedings." Everybodytalksabout, 161 Wn.2d at 708 (internal quotation marks omitted) (quoting State v. Tinkham, 74 Wn. App. 102, 109, 871 P.2d 1127 (1994)).
In Everybodytalksabout, the State used evidence it obtained during a presentence investigation from an unrepresented defendant in a later trial against the same defendant. 161 Wn.2d at 707. In that case, our Supreme Court held "because the statements Everybodytalksabout made in his presentence interview were used for the adversarial purpose of convicting him in a subsequent trial, the presentence interview was a critical stage of the proceeding." Everybodytalksabout, 161 Wn.2d at 712.
Kerr's case differs from Everybodytalksabout's because the State did not use the evidence beyond the sentencing phase. His case is more similar to the federal cases our Supreme Court cited to contrast with the situation in Everybodytalksabout, 161 Wn.2d at 711. In those cases, the Seventh and Ninth Circuits found the presentencing report a non-critical phase of the proceedings. United States v. Jackson, 886 F.2d 838, 844 (7th Cir. 1989) (the "district judge's use of a defendant's statement to a probation officer in applying the Sentencing Guidelines is markedly unlike the prosecutor's adversarial use of a defendant's pretrial statement to a psychiatrist to carry the state's burden of proof before a jury. A federal probation officer is an extension of the court and not an agent of the government. The probation officer does not have an adversarial role in the sentencing proceedings") (emphasis omitted); Baumann v. United States, 692 F.2d 565, 578 (9th Cir. 1982) (the State need not advise the accused of his right to counsel before a routine presentence investigation with a probation officer in a noncapital case).
Furthermore, Kerr made the statements regarding the second two-year-old victim during the DOC's presentence investigation, his polygraph, his psychosexual evaluation, and in open court during sentencing and in the presence of his attorney. The presentence investigation discloses that Kerr declined to discuss the matter outside the presence of his attorney and said the information he provided during his psychosexual evaluation was accurate.
The State did not use Kerr's disclosures during his presentence investigation for purposes of a later prosecution. Therefore, the investigation did not constitute a critical phase of the proceeding, and the absence of his counsel did not violate the Sixth Amendment. Cf. Everybodytalksabout, 161 Wn.2d at 712.
Kerr finally contends he received ineffective assistance of counsel. He asserts his counsel failed to object to certain arguments made by opposing counsel during sentencing and that this allowed the trial court to comment impermissibly on his silence.
A claim of ineffective assistance of counsel requires a showing of deficient performance by counsel and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Legitimate trial tactics or strategies are no basis for an ineffective assistance of counsel claim. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). As Kerr concedes, he must overcome a strong presumption that his counsel's performance was not deficient.
In this case, Kerr fails to carry his heavy burden because he did not receive ineffective assistance when his counsel did not object to the trial court's expression of its knowledge and experience. As discussed above, the Grayson court recognized that courts do not enter a sentencing hearing as they would a factual vacuum — with blank minds and no personal experience. 154 Wn.2d at 339-40.
Because counsel's performance was not deficient, we need not address the prejudice prong. Hendrickson, 129 Wn.2d at 78.
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.
HUNT, J. and VAN DEREN, C.J., concur.