State of Washington v. Brenten Michael Mulroy ( 2019 )

FILED
MARCH 14, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35472-5-III
Respondent, )
)
v. )
)
BRENTEN MICHAEL MULROY, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. — In 2007, Brenten Mulroy pled guilty to third degree assault,
unlawful imprisonment, and two counts of witness tampering, three of which charges
included domestic violence allegations. On appeal, Mulroy challenges one or more
convictions because of the State’s failure to plead the facts that supported the domestic
violence allegations. He also challenges portions of his sentence.
FACTS
Since Brenten Mulroy pled guilty to charged crimes without a trial, we take our
facts from a police report. On January 10, 2007, Brenten Mulroy and Jacqueline Sanger,
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State v. Mulroy
a dating couple, stayed overnight at the residence of Ashlie Brown and Michael Taylor.
At 5:00 a.m. on January 11, Mulroy awoke Sanger because he desired sexual intercourse.
Sanger informed Mulroy that she did not wish to engage in intercourse. An angry
Mulroy left the bedroom.
Brenten Mulroy soon returned to the bedroom and confronted Jacqueline Sanger.
Mulroy jumped on Sanger, sat on her waist, and pinned her to the bed. Mulroy punched
Sanger’s stomach and slapped her face. Sanger struggled to free herself and yelled for
help. Mulroy placed both hands around Sanger’s neck and squeezed. Mulroy suddenly
got off Sanger and declared: “‘I’m sorry.’” Clerk’s Papers (CP) at 1.
Jacqueline Sanger ran to Ashlie Brown’s bedroom as a sorrowful Brenten Mulroy
threatened to hurt Sanger again if she contacted police. Mulroy attempted to stop Sanger
and Brown from leaving the house. As the two left the residence, Mulroy broke Sanger’s
cell phone and warned that he would harm the two if either called law enforcement.
Ashlie Brown drove Jacqueline Sanger to Valley Hospital’s emergency room in
Spokane Valley. Brenten Mulroy admitted to Michael Taylor that he forcefully struck
Sanger in the face. Taylor saw that Mulroy’s fingers had blood near rings on the fingers.
PROCEDURE
The State of Washington charged Brenten Mulroy by amended information with
third degree assault, unlawful imprisonment, and two counts of witness tampering. One
count of witness tampering related to Mulroy’s threats to Jacqueline Sanger while the
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other count of witness tampering related to Mulroy’s threats to Ashlie Brown. The
charging information included the notation “DV,” for domestic violence near the listing
of the counts of third-degree assault and unlawful imprisonment and the count of
tampering with witness Sanger constituted domestic violence.
On March 28, 2007, Brenten Mulroy entered a plea of guilty to all four charges.
The guilty plea statement informed Brenten Mulroy that, because of a conviction for
domestic violence, the court could order him to pay a domestic violence assessment of up
to $100. The trial court accepted Mulroy’s guilty plea.
Based on an offender score of nine, Brenten Mulroy’s standard range for all four
offenses was fifty-one to sixty months, with an additional nine to eighteen months of
community custody. The maximum sentence for each count was five years. As part of a
plea bargain, the State recommended a prison-based drug offender sentencing alternative
(DOSA) sentence of 27.75 months in custody and 27.75 months on community custody.
The sentencing court followed the State’s recommendation and imposed a prison-
based DOSA sentence. The judgment and sentence, however, read that, if the
Department of Corrections terminated Mulroy from the DOSA program, the court could
require Mulroy to serve the remaining balance of his sentence as well as an additional
nine to eighteen months of community custody following his release. The trial court
found that Brenten Mulroy’s offenses were domestic violence offenses and imposed a
$100 domestic violence assessment in total.
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LAW AND ANALYSIS
On appeal, Brenten Mulroy challenges the sufficiency of the charging information
and a portion of his sentence. Based on State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714
(2018), Mulroy also asks that we vacate a legal financial obligation.
Charging Information
On appeal, Brenten Mulroy contends that the charging information was deficient.
He claims that the domestic violence allegation must be placed in the information
particularly since the allegation could increase the monetary penalty. He relies on
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
A deficient information raises a point of constitutional magnitude that we may
review for the first time on appeal. State v. Davis, 60 Wash. App. 813, 816, 808 P.2d 167
(1991), aff’d, 119 Wash. 2d 657, 835 P.2d 1039 (1992). We review challenges to the
sufficiency of a charging document de novo. State v. Williams, 162 Wash. 2d 177, 182, 170
P.3d 30 (2007).
The State must include all essential elements of a crime, statutory or otherwise, in
a charging document in order to afford notice to an accused of the nature and cause of the
accusation against him or her. State v. Kjorsvik, 117 Wash. 2d 93, 97, 812 P.2d 86 (1991).
This rule helps ensure that defendants can adequately prepare a defense. State v.
Kjorsvik, 117 Wash. 2d at 101.
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Brenten Mulroy emphasizes that Washington law fails to recognize the increased
punishment applied to a domestic violence finding, and, in turn, ignores the reasoning of
the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Blakely v. Washington, 542 U.S. 296 (2004). Mulroy notes that the domestic violence
finding can lead to a $100 assessment.
Apprendi v. New Jersey and Blakely v. Washington hold that any factor that
increases the penalty for a crime beyond the prescribed statutory maximum must be
proved beyond a reasonable doubt and found to exist by a jury. The decisions mention
nothing about pleading requirements.
The Washington State Legislature designed the domestic violence act, chapter
10.99 RCW, to “recognize the importance of domestic violence as a serious crime against
society and to assure the victim of domestic violence the maximum protection from
abuse.” RCW 10.99.010. The legislature sought to correct “policies and practices of law
enforcement agencies and prosecutors which have resulted in differing treatment of
crimes occurring between cohabitants and of the same crimes occurring between
strangers.” RCW 10.99.010. Among other things, the legislature required that courts
“identify by any reasonable means on docket sheets those criminal actions arising from
acts of domestic violence.” RCW 10.99.040(1)(d). The act directs the sentencing court
to enter a pretrial no-contact order and to grant such prosecutions priority in scheduling.
RCW 10.99.040(2).
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This court consistently holds that a domestic violence designation does not alter
the elements of the underlying offense. State v. Hagler, 150 Wash. App. 196, 201-02, 208
P.3d 32 (2009); State v. O.P., 103 Wash. App. 889, 892, 13 P.3d 1111 (2000). The
designation instead signals the court to equitably and vigorously enforce the law. The
designation need not be proved to a jury under Blakely. State v. Hagler, 150 Wash. App. at
202; State v. Winston, 135 Wash. App. 400, 406-10, 144 P.3d 363 (2006). Since the
allegation of domestic violence does not constitute an element of the crime, we reject
Brenten Mulroy’s contention that the allegation must be pled. We reaffirm this court’s
holding in State v. Goodman, 108 Wash. App. 355, 30 P.3d 516 (2001) that the information
need not include the alleged element of domestic violence.
We note that the original information and the amended information against
Brenten Mulroy placed the notation “DV” on the face of the document next to three of
the four crimes. Mulroy recognizes the notation, but argues the State needed to add, in
the charging information, the underlying facts that constituted domestic violence.
Because domestic violence need not be pled, we disagree.
Sentence
Brenten Mulroy asks that we remand for inclusion of a Brooks notation on his
judgment and sentence. He proclaims the necessity of the notation because his aggregate
term of imprisonment and community custody could exceed the statutory maximum for
his crimes. The term “Brooks notation” arises from case law wherein the Washington
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Supreme Court held that, when a defendant is sentenced to a “term of confinement and
community custody that has the potential to exceed the statutory maximum for the crime,
the appropriate remedy is to remand to the trial court to amend the sentence and explicitly
state that the combination of confinement and community custody shall not exceed the
statutory maximum.” In re Personal Restraint of Brooks, 166 Wash. 2d 664, 675, 211 P.3d
1023 (2009) (emphasis added).
The statutory maximum penalty respectively for the crimes of third degree assault,
unlawful imprisonment, and witness tampering is five years. RCW 9A.36.031(2); RCW
9A.40.040(2); RCW 9A.72.120(2). The sentencing court may not impose a sentence of
imprisonment or community custody that exceeds the statutory maximum for the crime.
RCW 9.94A.505(5). Brenten Mulroy’s judgment and sentence reads that, if the
Department of Corrections terminates Mulroy from the DOSA program, the court could
require Mulroy to serve the remaining balance of his sentence as well as an additional
nine to eighteen months of community custody following his release. Thus, community
custody and prison time could exceed sixty months, or five years.
Pursuant to State v. Franklin, 172 Wash. 2d 831, 263 P.3d 585 (2011), the State
argues remand for a Brooks notation is not necessary because the trial court sentenced
Brenten Mulroy before the 2009 amendments to the Sentencing Reform Act of 1981
(SRA) chapter 9.94A RCW. We disagree.
In State v. Franklin, the judgment and sentence contained the required Brooks
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notation because the court sentenced the defendant to a variable term of community
custody. Yet, John Franklin argued that Personal Restraint of Brooks no longer
controlled in light of the 2009 SRA amendments and that the amendments entitled him to
resentencing. The State argued Brooks still controls. The State Supreme Court took
review solely to consider whether the trial court needed to reduce Franklin’s terms of
community custody to bring the sentence within the statutory maximum. The court
framed the issue: “[w]hether the amendments to RCW 9.94A.701 apply retroactively to
Franklin and, if so, whether Franklin must be resentenced accordingly or, alternatively,
whether [Department of Corrections] has the authority to reduce the term of community
custody by recalculating its termination date.” State v. Franklin, 172 Wash. 2d at 839.
The Franklin court noted that RCW 9.94A.701(9) includes an express retroactivity
provision. The court then considered how to retroactively apply the changes to John
Franklin’s sentence. Franklin argued the new statute required the trial court to reopen
sentencing proceedings and retroactively reduce a previously imposed term of
community custody. The court disagreed and ruled that the legislature had charged the
Department of Corrections, not the sentencing court, with bringing pre-amendment
sentences in compliance with the SRA amendments. Therefore, resentencing was
unnecessary. The court wrote:
Specifically, section 9 requires the [Department of Corrections] to
recalculate the terms of community custody in accordance with the fixed
terms established in RCW 9.94A.701(1)-(3) for all offenders who were
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sentenced prior to the 2009 amendments. Under the new scheme, Franklin
is subject to fixed terms of 12 months of community custody for both
counts I and III. In addition, Franklin’s total sentence is still subject to the
Brooks notation in his original sentence.
State v. Franklin, 172 Wash. 2d at 841 (emphasis added) (footnote omitted).
In Brenten Mulroy’s appeal, the State asserts that the Brooks notation is only
required in those cases when the period of custody and community supervision facially
exceed the statutory maximum for the crime. Again, we disagree. The Brooks court
explicitly stated that, when a defendant is sentenced to a “term of confinement and
community custody that has the potential to exceed the statutory maximum for the crime,
the appropriate remedy is to remand to the trial court to amend the sentence and explicitly
state that the combination of confinement and community custody shall not exceed the
statutory maximum.” In re Personal Restraint of Brooks, 166 Wash. 2d at 675 (emphasis
added).
The State also asserts that RCW 9.94A.701(9) does not apply to Brenten Mulroy’s
sentencing because the trial court sentenced Mulroy in 2007, two years before the
Sentencing Reform Act amendments. Again, we disagree. State v. Franklin, which the
State otherwise uses as support, held that RCW 9.94A.701(9) applies retroactively due to
its express retroactivity provision.
In line with Brooks and Franklin, resentencing is not necessary. Nevertheless, we
remand so the trial court can amend Brenten Mulroy’s judgment and sentence to include
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the Brooks notation such that the combined term of confinement and community custody
shall not exceed the statutory maximum. Mulroy need not appear for a hearing to enter
the amendment.
Legal Financial Obligations
By motion filed after submitting his appeal briefs, Brenten Mulroy asks this court
to reverse the trial court’s imposition of $200 in court costs, which likely represents the
criminal filing fee. Mulroy’s argument relates to the recent amendments to many of the
legal financial obligation statutes by House Bill 1783 and a recent decision by our
Supreme Court. House Bill 1783 became effective June 7, 2018, and the Washington
Supreme Court decided State v. Ramirez, 191 Wash. 2d 732 (2018) on September 20, 2018.
Due to the timing of House Bill 1783 and Ramirez, Mulroy could not raise this issue in
his opening brief.
Due to House Bill 1783, the criminal filing fee is no longer a mandatory legal
financial obligation. The legislature proscribed courts from imposing the fee on indigent
defendants. LAWS OF 2018, ch. 269 §, 17. Because Ramirez’s case was still pending on
review, and not final when the amendments were enacted, our Supreme Court held that
Ramirez was entitled to the benefit of the amendments. The court stated:
Ramirez’s case was on appeal as a matter of right and thus was not
yet final under RAP 12.7 when House Bill 1783 became effective. Because
House Bill 1783’s amendments pertain to costs imposed upon conviction
and Ramirez’s case was not yet final when the amendments were enacted,
Ramirez is entitled to benefit from this statutory change.
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State v. Ramirez, 191 Wash. 2d at 749.
Brenten Mulroy's case was still pending on direct review when the legislature
enacted House Bill 1783. Thus, following the Supreme Court's dictate, he is entitled to
the benefits of the statutory changes. Mulroy was found indigent for purposes of appeal
and would likely be found indigent based on the information provided in his report as to
continued indigency. Therefore, we also remand to order the trial court to strike the $200
in costs from the judgment and sentence. Mulroy need not appear for a hearing to strike
the costs.
CONCLUSION
We affirm all of Brenten Mulroy's convictions. We remand for the sentencing
court to include a Brooks notation in the judgment and sentence and for the sentencing
court to strike $200 in costs from the judgment and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Feari;,f~ \:J
WE CONCUR:
Lawrence-Berrey, C.J.
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