Opinion
No. 29616-1-II.
Filed: March 16, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 99-1-02536-1. Judgment or order under review. Date filed: 10/11/2002. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Hugo T. Pedro appeals the inclusion of an out-of-state prior offense in the calculation of his offender score. Pedro argues that the State did not show beyond a reasonable doubt that he was the person convicted of the prior offense. In his Statement of Additional Grounds (SAG), Pedro also asserts a violation of his right to speedy sentencing, and that the State provided a reduced sentence recommendation that the court did not adopt. Finding no error, we affirm.
RAP 10.10(a).
Facts
Pedro is currently serving a 126 month sentence for two counts of unlawful delivery of a controlled substance and one count of unlawful possession of a controlled substance. Before imposing its sentence, the court determined that Pedro had an offender score of nine.
Following our reversal of an appeal to this court, we remanded the case for a new sentencing hearing to determine whether a 1991 California conviction should have been considered in calculating Pedro's offender score. On August 29, 2002, the superior court continued the resentencing hearing because there was no Spanish interpreter available, and because the State had not yet received the information from California regarding the prior conviction.
The court reporter noted the decision on August 14, 2002.
On September 12, 2002, the superior court again continued Pedro's resentencing hearing because the State still had not obtained the requested information from California.
On October 11, 2002, the court conducted the resentencing hearing and determined that Pedro's California conviction was equivalent to Washington's crime of unlawful delivery of a controlled substance. Thus, it ruled that Pedro's offender score had been accurately calculated and it entered an order reaffirming the earlier sentence.
Pedro now asserts that the State did not prove beyond a reasonable doubt that he was the person who had the California conviction. In his SAG, Pedro further complains of a violation of his right to speedy sentencing and that the court failed to adopt the State's recommendation of a lower sentence. Finding no error in the resentencing, we affirm.
Analysis I. California Judgment and Sentence
Pedro argues that the State has not met its burden in proving that he was the person referenced in the California conviction because the California judgment and sentence refers to "Terry, Hugo." Clerk's Papers (CP) at 27. Hugo did not raise this issue below. Defense counsel reviewed the California judgment and sentence and did not object to its validity or its application to Pedro.
We may review claimed errors that were not raised below if the errors are manifest and affect a constitutional right. RAP 2.5(a). However, "[a]ppellate courts will not waste their judicial resources to render definitive rulings on newly raised constitutional claims when those claims have no chance of succeeding on the merits." State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999).
The State must prove a defendant's criminal history by a preponderance of the evidence before the sentencing court may consider prior convictions. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). The best evidence of a prior conviction is a certified copy of the judgment, but the State may also introduce other comparable documents. Ford, 137 Wn.2d at 480.
In the record before us, we have documents that reflect at least 10 different constructions of the defendant's name. The California judgment and sentence refers to a "Terry, Hugo." CP at 27. The sentencing form from California refers to the same defendant as "Terry, Hugo Rigoberto." CP at 29. Washington has referred to Pedro in various ways throughout trial, sentencing, appeal and resentencing.
Terry, Hugo; Terry, Hugo Rigoberto; Pedro, Hugo Roberto; Hugo Pedro Ortiz; Hugo Pedro; Hugo T. Pedro; Hugo, Pedro T.; Hugo R. Terry Pedro; Hugo Rigoberto Terry; Hugo Robert Pedro.
Despite this lack of clarity, the evidence in the record is sufficient to show that the California judgment and sentence refers to appellant Hugo T. Pedro. Pedro sent letters to the court, signing them "Hugo R. Terry Pedro" and "Hugo Rigoberto Terry." CP at 55, 59. Pedro also signed an affidavit as "Hugo T. Pedro." CP at 82.
Finally, Pedro entered a stipulation in the superior court that he, "Hugo Roberto Pedro," was convicted on June 10, 1991, for the sale/transport of narcotics. CP at 44. This is the same date of the California judgment and sentence for "Terry, Hugo" for the same offense. CP at 27. This record is sufficient to show that Pedro was convicted of California offense.
II. Right to Speedy Sentencing
Under RCW 9.94A.500, a defendant has a right to a sentencing hearing "within forty court days following conviction." The parties agree that the starting date for Pedro's right to speedy sentencing began on August 14, 2002. Pedro was not resentenced until October 11, 2002, which appears to be one day over 40 court days.
However, "the court may extend the time period for conducting the sentencing hearing" on its own motion. RCW 9.94A.500. The trial court has broad discretion in determining whether there is good cause to postpone sentencing. State v. Roberts, 77 Wn. App. 678, 685, 894 P.2d 1340 (1995). And we will not disturb the trial court's decision absent an abuse of discretion. Roberts, 77 Wn. App. at 685.
On September 12, 2002, the sentencing judge continued the resentencing hearing to October 4th, 2002, which was within the 40 court day limit. The judge did this after noting that there was no chance that a minor delay in resentencing would result in Pedro being detained in excess of his sentence.
There is no indication in the record as to why or how the resentencing hearing was pushed back another week, until October 11, 2002. But there is no indication that this one week delay caused Pedro any prejudice. State v. Anderson, 92 Wn. App. 54, 60-61, 960 P.2d 975 (1998). Again, the delay in conducting the resentencing hearing could not have resulted in detaining Pedro beyond his proper sentence, even if the court excluded the California conviction. Thus, we find no abuse of discretion in sentencing Pedro one day beyond the 40 day statutory limit.
III. Sentence Recommendation
Pedro claims that the State recommended that he receive a sentence of 48 months. See SAG. In fact, the State was referring to the standard range sentence for unlawful delivery of a controlled substance for an offender with a score of zero. It made this point to highlight the fact that even without speedy resentencing, there was no risk that Pedro would be imprisoned beyond his sentence. The State did not recommend reducing Pedro's sentence to 48 months.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, C.J. and ARMSTRONG, J., concur.