State Of Washington, V. Nathaly Pereira ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
February 8, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 55536-1-II
Respondent,
v. UNPUBLISHED OPINION
NATHALY ANDREA LEON PEREIRA,
Appellant.
WORSWICK, J. — Nathaly Leon Pereira appeals her standard range sentence, arguing that
the trial court was required to accept the parties’ recommended sentence, and that she is entitled
to specific performance. We hold that Pereira’s sentence is not appealable, and thus affirm.
FACTS
Pereira walked in on her ex-husband and another woman in bed on February 14, 2020.
Enraged, Pereira physically attacked her ex-husband and the woman by brandishing a knife and
threatening to kill both parties before she sprayed them with bear mace. Pereira left the
apartment, then damaged the woman’s car by slashing the tires, breaking the front windshield,
and spray-painting it with the words “slut,” “whore,” and “hoe.”
Pereira was initially charged with two counts of first-degree burglary, two counts of
second-degree assault, and one count of second-degree malicious mischief. Later, the State
added a charge of tampering with a witness following Pereira’s jail phone call to her ex-husband
No. 55536-1-II
asking him to contact the police and change his version of the story. The State then filed a
second amendment based on plea negotiations and mitigating evidence,1 amending the charges to
two counts third-degree assault, and one count each of second-degree malicious mischief, and
tampering with a witness.
The standard range for the crimes charged was: 12+ to 16 months for third-degree assault,
3 to 8 months for second-degree malicious mischief, and 17 to 22 months for tampering with a
witness. However, the parties agreed to recommend an exceptional sentence downward to include
six months of electronic home monitoring and 12 months of community custody. Pereira’s plea
agreement included the following paragraph:
(h) The judge does not have to follow anyone’s recommendation as to
sentence. The judge must impose a sentence within the standard range unless the
judge finds substantial and compelling reasons not to do so.
....
If the court imposes a standard range sentence, then no one may appeal the
sentence.
Clerk’s Papers at 29. Pereira indicated she read and understood the statement, and her attorney
read the statement with her, “each and every paragraph.” Report of Proceedings (RP) at 8.
Before accepting Pereira’s plea, the trial court engaged in colloquy, listed the standard
range sentences for each of the crimes charged, and asked Pereira: “Do you understand that the
Court’s not bound by that recommendation and that the Court could sentence you up to 16
months in prison on Counts 3 and 4, eight months on Count 5, and 22 months on Count 6?”
1
For example, Pereira had a key and did not enter into the apartment illegally.
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No. 55536-1-II
Pereira indicated that she understood. Pereira then pleaded guilty, and the trial court accepted
her plea.
The trial court did not follow the parties’ recommendation for an exceptional downward
sentence; instead, it sentenced Pereira to the low end of the standard range on all counts to run
concurrently. During sentencing, the court expressed an understanding of Pereira’s emotions
upon walking into the house and seeing her ex-husband with someone else, but noted that this
incident occurred in the evening and involved assaults, vehicle damage, and efforts to get her
husband to change his story. The court found Pereira’s behavior “completely unacceptable.”
RP at 26. The court then noted Pereira’s criminal history, focusing on several assaults and
describing her as someone with “a short fuse.” RP at 26. The trial court stated that it had respect
for the attorneys in this matter, but that “it’s the Court’s discretion and decision as to what is the
appropriate sentence in this matter.” RP at 26. The court stated, “I don’t believe that there’s a
basis for an exceptional sentence in this matter. There certainly is no basis to do electronic home
monitoring.” RP at 27.
Pereira now appeals her standard range sentence.
ANALYSIS
I. PEREIRA’S STANDARD RANGE SENTENCE IS NOT APPEALABLE
As an initial matter, the State argues that Pereira’s standard range sentence is not
appealable. We agree.
A sentence within the standard range is generally not reviewable. RCW 9.94A.585(1);
State v. Delbosque, 195 Wn.2d 106, 126, 456 P.3d 806 (2020). However, our Supreme Court
has interpreted this prohibition as precluding appellate review “of challenges to the amount of
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No. 55536-1-II
time imposed when the time is within the standard range.” State v. Ammons, 105 Wn.2d 175,
182, 713 P.2d 719, 718 P.2d 796 (1986). Thus, appellant is not prevented from challenging the
procedure used by the trial court to impose a standard range sentence. State v. Sanchez, 146
Wn.2d 339, 346, 46 P.3d 774 (2002). Thus, we can review “a court’s decision to impose a
standard range sentence in ‘circumstances where the court has refused to exercise discretion at
all or has relied on an impermissible basis for refusing to impose an exceptional sentence below
the standard range.’” State v. McGill, 112 Wn. App. 95, 99-100, 47 P.3d 173 (2002) (quoting
State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). A trial court may
impose an exceptional sentence only if it finds substantial and compelling reasons to do so.
RCW 9.94A.535. “When a court has considered the facts and concluded there is no legal or
factual basis for an exceptional sentence, it has exercised its discretion, and the defendant cannot
appeal that ruling.” McGill, 112 Wn. App. at 100.
Here, Pereira argues that the trial court erred “in refusing to accept the stipulated
sentencing agreement as justification for an exceptional sentence downward.” Br. of Appellant
at 6. This presupposes that, if the trial court had accepted the plea agreement, it would have been
obligated to impose an exceptional sentence. But, as discussed above, a trial court is not bound
by the parties’ agreement and is free to exercise its discretion in sentencing defendants.
The record shows that the trial court considered the plea agreement and exercised its
discretion when it sentenced Pereira to the low end of the standard sentencing range. It
considered all the facts and legal basis presented by the parties, but ultimately, it found no basis
for an exceptional sentence; instead, the trial court found Pereira’s behavior “completely
unacceptable.” RP at 26. The trial court emphasized Pereira’s past of assaultive behavior and
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No. 55536-1-II
the gravity of her actions. It also noted that even though it considered the parties’
recommendation, the court has sole discretion to decide which sentence is appropriate. The
record does not show that the trial court abused its discretion by believing it did not have
authority to impose an exceptional sentence. To the contrary, the trial court made a clear record
of considering and rejecting the sentencing recommendation.
Therefore, Pereira cannot appeal her standard range sentence.2
II. THE STATE’S RESPONSIVE BRIEF DID NOT VIOLATE THE PLEA AGREEMENT
In her reply brief, Pereira argues that she is entitled to specific performance of the plea
agreement because the State violated the plea agreement by advocating for a standard range
sentence rather than the agreed exceptional sentence downward. We disagree.
“A prosecutor is obliged to fulfill the State’s duty under the plea agreement by making
the promised sentencing recommendation.” State v. Sledge, 133 Wn.2d 828, 840, 947 P.2d 1199(1997). This duty includes an obligation “to participate in the sentencing proceedings, candidly
answering the court’s questions in accordance with RPC 3.3, and holding back no relevant
information regarding the plea agreement.” Sledge, 133 Wn.2d at 840. The State fulfills this
obligation when it advocates a sentence in accordance with the agreement and is permitted to act
as an advocate for the sentence the trial court imposed. State v. Arko, 52 Wn. App. 130, 133, 758
P.2d 522 (1988). Once it does so, the State meets the terms of its agreement and is not obliged to
2
In her reply brief, Pereira argues that her sentence is appealable because the trial court failed to
exercise its discretion in imposing an exceptional sentence based on a “misconception that it did
not have authority to so act.” Reply Br. of Appellant at 9. However, Pereira does not point to
any facts showing that the trial court believed it did not have authority to impose an exceptional
sentence. In fact, the trial court acknowledged the parties’ recommendation, and it noted that
sentencing was solely within the trial court’s discretion. Pereira’s argument is unsupported.
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No. 55536-1-II
do more. Arko, 52 Wn. App. at 133. After sentencing, the State’s obligation is to become an
advocate for the court’s position and to argue in favor of the sentence imposed to the extent that
such arguments are supportable. Arko, 52 Wn. App. at 134.
Here, the State did not violate the plea agreement by advocating for the court’s position
on appeal. The State’s obligation was to advocate for the sentence agreed upon as part of the
plea deal at the trial level, and the State here did so. The plea agreement outlined that the
prosecuting attorney would recommend an exceptional sentence of six months electronic home
monitoring and 12 months community custody. At trial, the State advocated for that same
sentence. Thus, it fulfilled its obligation under the plea agreement.
Therefore, Pereira fails to show that the State violated the plea agreement on appeal, and
her argument fails.
Accordingly, we affirm Pereira’s sentence.
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 in accordance with RCW 2.06.040,
it is so ordered.
Worswick, J.
We concur:
Glasgow, J.
Price, J.
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