State Of Washington v. Oliver Weaver ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72648-0-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
OLIVER W. WEAVER, JR.
Appellant. FILED: November 16, 2015
Appelwick, J. — Weaver was convicted of rape of a child in the second
degree and rape in the second degree. The jury found that Weaver impregnated
the victim, an aggravating factor for sentencing purposes. The trial court imposed
an exceptional sentence on both counts. At Weaver's third sentencing hearing,
the trial court imposed the same exceptional sentence originally imposed. Weaver
argues that the trial court did not justify the exceptional sentence, and that the
sentence is clearly excessive in light of his changed health conditions. We affirm.
FACTS
In early December 2002, R.T. was working for Oliver Weaver. State v.
Weaver, 140 Wash. App. 349, 351, 166 P.3d 761 (2007), adhered to on remand,
noted at 156 Wash. App. 1015, 2010 WL 2165353, reversed by. 171 Wash. 2d 256, 251
P.3d 876 (2011). One day, R.T. was cleaning Weaver's home when Weaver
No. 72648-0-1/2
approached her and violently raped her. Id. He threatened R.T., and she was too
afraid to report the rape. Id. But, R.T. did disclose the rape two months later when
she suspected she was pregnant, jd. Her doctor confirmed that R.T. was
pregnant. Id. On the advice of her mother and doctor, R.T. terminated the
pregnancy. Id.
Weaver was charged with one count of second degree rape of a child
(Count I) and one count of second degree rape (Count II). The jury found Weaver
guilty as charged. It also found that R.T. was a child at the time of the offense and
that she was impregnated by the defendant. For sentencing purposes, it is an
aggravating factor that the offense resulted in the pregnancy of a child victim of
rape. Former RCW 9.94A.535(2)(k) (2002). The trial court imposed an
exceptional sentence of 250 months to life imprisonment for each count. The court
determined that the terms would run concurrently.
Weaver has appealed his conviction and sentence multiple times. Weaver,
140 Wash. App. 349; State v. Weaver, noted at 179 Wash. App. 1001, 2014 WL
231338, review denied, 180 Wash. 2d 1015 327 P.3d 55 (2014).. At issue here is
Weaver's third sentencing hearing, which took place in October 2014. Only count
I was before the trial court at this hearing. After considering Weaver's declining
health and the record below, the trial court imposed the same exceptional sentence
that the trial court originally imposed.
No. 72648-0-1/3
To clarify what law applied at the time of the third sentencing, the State
suggested that the trial court re-sign the original judgment and sentence, rather
than enter an entirely new document. The trial court complied in part. It added the
date and a signature to the previously entered findings of fact and conclusions of
law supporting the original sentence. The court also added a single handwritten
sentence to the conclusions of law: "The exceptional sentence of 250 months is
re-imposed on count I for the above reasons." The trial court also executed a new
judgment and sentence.
Weaver appeals.
DISCUSSION
Weaver contends the trial court erred in imposing an exceptional sentence
of 250 months on Count I.1 He provides several arguments challenging the trial
court's reasons for its decision. We understand these arguments as an assertion
that evidence in the record does not support the trial court's reasons for imposing
an exceptional sentence. We review this question under a clearly erroneous
standard. State v. Law, 154 Wash. 2d 85, 93, 110 P.3d 717 (2005).
Weaver asserts that the trial court failed to make an independent
determination that the exceptional sentence was justified. He points to the fact
1 A court has the discretion to decline to hear an appeal on the basis that it
is moot. State v. Ross, 152 Wash. 2d 220, 228, 95 P.3d 1225 (2004). A case is moot
if the court cannot provide effective relief. In re Pers. Restraint of Mines, 146
Wash. 2d 279, 283-84, 45 P.3d 535 (2002). The State contends Weaver's argument
is moot, because the convictions have been affirmed and the exceptional sentence
of 250 months on count II still stands. It argues that a decision in Weaver's favor
would have no practical consequence for Weaver. However, we decline to resolve
his claim on mootness rather than on the merits.
No. 72648-0-1/4
that the trial court did not enter new findings and merely signed on to the original
findings with a note that the sentence is "re-imposed on count I for the above
reasons." But, Weaver's argument ignores evidence of the trial court's
independent determination in the record. The court specifically noted that it had
"reviewed the entire record" before imposing the exceptional sentence. The court
heard defense counsel's request that Weaver be sentenced to only 95 months.
And, the court heard Weaver explain his changed health conditions. Then, the
court imposed an exceptional sentence of 250 months on count 1, noting that it
was "[mjaking an independent determination that that's appropriate."
Weaver also claims the court did not assess his changed circumstances in
making this determination. He argues the court should have looked at his terminal
illness and little remaining time to live. But, after Weaver spoke about his health
conditions, the trial court told him, "I'm sorry to hear that." And, immediately before
it announced its ruling, the court told Weaver again, "I'm sorry about your medical
situation." The evidence in the record shows that the trial court did consider
Weaver's health conditions.
We hold that there is sufficient evidence in the record to support the trial
court's reasons for imposing the exceptional sentence. The sentence is not clearly
erroneous.
Additionally, Weaver argues that the trial court abused its discretion in
imposing a clearly excessive sentence in light of his terminal illness. We apply an
abuse of discretion standard to the question of whether the sentence imposed was
clearly excessive. State v. Ritchie, 126 Wash. 2d 388, 395-96, 894 P.2d 1308 (1995).
No. 72648-0-1/5
A sentencing court abuses its discretion in setting an exceptional sentence only if
it relies on an impermissible reason or imposes a sentence which is so long that it
shocks the conscience of the reviewing court. ]cL
Here, the court relied upon the jury's finding that the victim was a child victim
of rape who became pregnant as a result of the offense. Under the Sentencing
Reform Act, this is a permissible reason for which to impose an exceptional
sentence. Former RCW 9.94A.535(2)(k) (2002).
The only remaining question is whether, considering the record, the
sentence is so long that it shocks the conscience. Ritchie, 126 Wash. 2d at 396.
Weaver asserts that his sentence is clearly excessive due to the fact that he now
has pancreatic cancer and little time left to live. But, Weaver cites no authority for
the proposition that his deteriorating health makes his exceptional sentence shock
the conscience. Assuming his deteriorating health is a factor to be considered, we
note his assertion that he had 15 or 16 months to live. If true, any sentence
whether extending his incarceration 20 months or 250 months would be a veritable
life sentence. Moreover, the unchallenged portion of his sentence imposed a 250
month term independent of the sentence on this count. This undercuts the claim
that the sentence shocks the conscience.
Weaver was convicted of the violent rape of a 13 year old girl. Weaver, 140
Wash. App. at 351. R.T. had to disclose the rape when she discovered that she was
pregnant. Id\ With the help of her mother and doctor, R.T. decided to have an
abortion. ]± And, the jury entered a special finding that Weaver impregnated R.T.
as a result of the rape. Id. at 352.
No. 72648-0-1/6
In light of these facts, we hold that Weaver's exceptional sentence does not
shock the conscience. Therefore, the trial court did not abuse its discretion in
imposing such a sentence.
We affirm.
WE CONCU
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