State of Washington v. Ignacio Cobos ( 2013 )

FILED
DEC. 31, 2013
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. 30658-5-III
Respondent, )
)
v. )
)
IGNACIO COBOS, ) PUBLISHED OPINION
)
Appellant. )
FEARING, J. — Statutes and case law aspire to accurate criminal sentences
regardless of untimely objections to their correctness and despite a previous failure to
supply sufficient data to levy informed sentences. “[Our] purpose is to preserve the
integrity of the sentencing laws” and to avoid widely varying sentences. State v.
Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009) (citing State v. Ford, 137 Wn.2d
472, 478, 973 P.2d 452 (1999)). We have the opportunity to fulfill this aspiration and
satisfy this purpose in this appeal.
INTRODUCTION AND RULING
A jury convicted Ignacio Cobos of delivery of methamphetamine, possession of
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State v. Cobos
methamphetamine, and voyeurism. The trial court sentenced Cobos to 120 month's
confinement.
Cobos appeals his sentence, arguing that, despite timely objecting to his offender
score at sentencing, the court failed to hold an evidentiary hearing. The State concedes
Cobos objected to his offender score at a sentencing hearing, but argues that, at a prior
sentencing hearing, his attorney agreed with the offender score, and the State relied on
the agreement. The State also argues that, if this court finds Cobos' subsequent objection
to his offender score negates his attorney's prior representation, it be allowed, on remand,
to enter certified records of Cobos' prior convictions to substantiate his offender score.
Cobos opposes the State's entreaty and requests this court hold the State, on remand, to
the existing record. We agree with Cobos that he is entitled to a sentencing evidentiary
hearing and agree with the State that it may enter additional evidence at the new hearing.
FACTS
After Ignacio Cobos' convictions, the court scheduled sentencing hearings for
January 18, and January 31, 2012. Both hearing dates were postponed and the first
sentencing hearing was held on February 7, 2012.
At the February 7 hearing, Cobos moved to represent himself. After Cobos
brought the motion, but before the court granted the motion, the State and Cobos'
attorney agreed on an offender score of 9. Afterward, the sentencing court granted
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Cobos' motion to represent himself and, at the request of Cobos, the court continued the
sentencing hearing one week to February 14,2012.
At the February 14 hearing, Cobos objected for the first time to his offender score
listed in the report. CrR 7.1 (c) requires a party challenging a presentence report to notify
opposing counsel at least three days before the sentencing hearing. When questioned
why he objected, Cobos replied that he must verify whether convictions included in his
score were reversed on appeal. During the Valentine's Day hearing, the court also
expressed concern over a discrepancy between the presentence investigation report (PSI)
and the Interstate Identification Index (Triple I). The PSI omitted one conviction
contained in the Triple I.
During the February 14 hearing, the State alertly offered to obtain certified records
of Cobos' judgments and sentences if the court continued the sentencing hearing. Cobos
objected to a postponement, claiming a right to "speedy sentencing." Verbatim Report of
Proceedings (Feb. 14,2012) at 20. RCW 9.94A.500(1) requires that sentencing occur
within 40 days of a defendant's conviction, but a court may extend that time period for
good cause shown or on its own motion. And, when a defendant objects to facts material
to their offender score, a sentencing court must hold an evidentiary hearing. RCW
9.94A.530(2).
During the February 14 sentencing hearing, the court gave Ignacio Cobos
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State v. Cobos
two options: (1) continue the sentencing hearing for one week so that the State can obtain
certified records of his prior convictions, or (2) proceed with the sentencing hearing and
the court would rely on the offender score his fonner attorney and the State agreed to at
the February 7 hearing. Cobos rejected both options, and the court proceeded with
sentencing. Relying on Cobos' fonner attorney's representation that the offender score is
accurate, the court sentenced Cobos to 120 months.
ANALYSIS
Sentencing Hearing. Ignacio Cobos asks this court to remand his sentencing
because he objected to his offender score and the sentencing court failed to hold an
evidentiary hearing to establish his prior convictions. The State responds that it
reasonably relied on the ratification of Cobos' offender score by his attorney at the
February 7 hearing, such that an evidentiary hearing was unneeded. We grant Cobos'
request.
The trial court must conduct a sentencing hearing before imposing a sentence on a
convicted defendant. RCW 9.94A.500(1); State v. Hunley, 175 Wn.2d 901,908,287
P.3d 584 (2012). A defendant's criminal history or offender score affects the sentencing
range and is generally calculated by adding together the defendant's current offenses and
prior convictions. RCW 9.94A.589(l)(a); Hunley, 175 Wn.2d at 908-09. At sentencing,
the State bears the burden to prove the existence of prior convictions by a preponderance
of the evidence. Mendoza, 165 Wn.2d at 920. The State, not the defendant, holds the
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obligation to assure that the record before the sentencing court supports the criminal
history determination. Ford, 137 Wn.2d at 480. The best evidence of a prior conviction
is a certified copy of the judgment. State v. Lopez, 147 Wn.2d 515,519, 55 P.3d 609(2002) (quoting Ford, 137 Wn.2d at 480). Bare assertions, unsupported by evidence, do
not satisfy the State's burden to prove prior convictions. Hunley, 175 Wn.2d at 910.
When a convicted defendant disputes facts material to his sentencing, "the court
must either not consider the fact or grant an evidentiary hearing on the point." RCW
9.94A.530(2); accord State v. Cadwallader, 155 Wn.2d 867,874, 123 P.3d 456 (2005).
Thus, we must ask: (1) whether Cobos' objection to the offender score at the February 14
hearing overrode his former counsel's ratification at the February 7 hearing, (2) whether
the facts to which Cobos objected were material to his sentencing, and (3) whether the
court considered those facts when sentencing Cobos.
We rule that Ignacio Cobos' objection to his offender score at the February 14
hearing superseded his former attorney's representation. After winning the motion to
represent himself, Cobos should have become the master of his legal strategy. The court
had yet to determine the score. His counsel had agreed to a score while Cobos' motion to
represent himself was pending. Thus, the State was on notice that counsel may be
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shortly removed. Sentencing is a critical step in the criminal justice system. Hunley,
175 Wn.2d at 910 (quoting In re Pers. Restraint oj Williams, 111 Wn.2d 353,357,759
P.2d 436 (1988)). Since the offender score affected Cobos' length of punishment, the
score concerned a substantive right, not a procedural right, Miller v. Florida, 482 U.S.
423,107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987); Meadv. Comm'r ojCorr., 282 Conn. 317,
323,920 A.2d 301 (2007); Krebs v. State, 534 So.2d 1236, 1237 (Fla. Dist. Ct. App.
1988), for which counsel lacked authority to bind his client.
An attorney can waive his client's substantive rights only with specific
authorization. State v. Ford, 125 Wn.2d 919,922,891 P.2d 712 (1995) (quoting In re
Adoption ojCoggins, 13 Wn. App. 736, 739, 537 P.2d 287 (1975)). While an attorney is
impliedly authorized to waive procedural matters, a client's substantial rights may not be
waived without that client's consent. Graves v. P.J. Taggares Co., 94 Wn.2d 298, 303,
616 P.2d 1223 (1980); State v. Sain, 34 Wn. App. 553, 556-57, 663 P.2d 493 (1983).
Although no case directly answers the question, a rule mentioned in passing in one
decision suggests that an opposing party may not assume an attorney has authority to
bind his client on any matter, when the opposing party has notice that the client wishes to
terminate the services of the attorney, regardless of whether the attorney has yet to
withdraw. In Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978), our high court
wrote:
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But once a party has designated an attorney to represent him in regard to a
particular matter, the court and the other parties to an action are entitled to
rely upon that authority until the client's decision to terminate it has been
brought to their attention.
Our Supreme Court has also held that a sentencing court must conduct an
evidentiary hearing when a defendant objects to the State's calculation ofthe offender
score, even if that defendant's counsel agreed with the offender score. State v.
Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007). In Bergstrom, the State relied on
Bergstrom's attorney's acknowledgment of the standard sentence range and offender
score. Id. at 95. Despite the State's reasonable reliance, the court still held that, because
the sentencing court considered Bergstrom's pro se motion objecting to his offender
score, "the sentencing court erred when it failed to hold an evidentiary hearing and
instead sentenced Bergstrom." Id. at 97. Bergstrom had not sought or been granted the
ability to represent himself, but only disagreed with his counsel. Id. at 91. The
Bergstrom ruling applies with stronger force to Cobos' situation since he represented
himself by the time of the sentencing hearing.
Cobos also shows the facts to which he objected were material. Cobos objected to
every prior conviction. Because the prior convictions control his offender score, his
objections are material. RCW 9.94A.525.
The sentencing court relied on the material facts to which Cobos objected when
determining his sentence. The court's remarks at sentencing show it imposed the
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maximum sentence possible because many prior convictions demonstrated prison will not
change his behavior.
In short, the sentencing court erred when it failed to hold an evidentiary hearing
and instead relied on material facts to which Cobos objected.
Evidence at Resentencing. Ignacio Cobos contends the State should be precluded
from entering new evidence into the record on the remand for resentencing. He relies on
State v. Lopez, 147 Wn.2d 515, 55 P.3d 609 (2002) where the court precluded the State
from entering new evidence of the defendant's alleged prior convictions on remand for
resentencing because the defense timely notified the State of its obligation to establish the
prior convictions. Cobos' case is unlike Lopez and more analogous to Bergstrom, where
the State was allowed to introduce new evidence on remand for resentencing because the
defendant's pro se objection was untimely, and the sentencing court failed to hold an
evidentiary hearing. Bergstrom, 162 Wn.2d 87.
We need not decide, however, whether to follow Lopez or Bergstrom. Subsequent
to the two decisions, the state legislature amended RCW 9.94A.530(2) to permit, in all
cases, new evidence at resentencing. RCW 9.94A.530(2) now reads:
On remand for resentencing following appeal or collateral attack, the
parties shall have the opportunity to present and the court to consider all
relevant evidence regarding criminal history, including criminal history not
previously presented.
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See LAWS OF 2008, ch. 231, § 4. The intent of this amendment is confinned by another
2008 amendment. See LAWS OF 2008, ch. 231, § 1. Former RCW 9.94A.525(21) (2008)
provided: "Prior convictions that were not included in criminal history or in the offender
score shall be included upon any resentencing to ensure imposition of an accurate
sentence."
I Our high court has proclaimed as unconstitutional two sections of the 2008
j amendments, one that requires the defendant to affinnatively object to a score and one
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that declares presentence reports prima facie evidence because of a violation of due
process rights. Hunley, 175 Wn.2d 901. Nevertheless, the amendment to RCW
9.94A.530(2), allowing inclusion of additional convictions on resentencing, is
constitutional. The amendment is consistent with the United States Supreme Court's
holding in Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998),
that double jeopardy is not implicated at resentencing following an appeal or collateral
attack. Our Supreme Court has already permitted the entry of new evidence upon
resentencing. Bergstrom, 162 Wn.2d 87.
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CONCLUSION
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We remand for resentencing and allow both the State and Cobos to supplement the
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record.
:3h~ :T
Fearin~)
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WE CONCUR:
~1t1~y
Siddoway, A.C.J. U Kulik, J.
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