State Of Washington v. Roger Marco Holmes ( 2013 )

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68146-0-1
Respondent, DIVISION ONE
v.
ROGER HOLMES, UNPUBLISHED OPINION
Appellant. FILED: June 10. 2013
Spearman, A.C.J. — Roger Holmes appeals the sentence imposed for his
conviction of felony violation of a court order, arguing that the trial court violated his right
to a jury trial by designating the offense as one of "domestic violence" and by imposing
an aggravating factor of rapid recidivism. In his pro se statement of additional grounds,
Holmes also challenges his conviction. Finding his arguments are without merit, we
affirm.
FACTS
On October 11, 2010, the Seattle Municipal Court issued a no-contact
order prohibiting Roger Holmes from contacting his ex-girlfriend, Michelle Garza.
The order precluded Holmes from assaulting or "causing or attempting to cause
physical harm, bodily injury" to Garza; from "coming near and from having any
contact whatsoever" with Garza; and from "entering or knowingly coming within
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or knowingly remaining within 500 feet distance" of Garza. Report of Proceedings
(RP) (10/31/11) at 11-12. The order further provided that Holmes "can be
arrested even if the person or persons who obtain the order invite or allow you to
violate the order's prohibitions." ]d. at 12.
On November 16, 2010, Dustin Byers saw a woman and one other person
arguing and fighting inside and around a car parked across the street from his
home. The argument was "heated" and "seemed violent in nature." RP (10/27/11)
at 35. Byers called the police. When he went outside, the car was driving away,
and the woman was lying in the street. The woman, Garza, told a Seattle Fire
Department lieutenant that she had been injured and thrown from the car by her
boyfriend, Holmes.
The State charged Holmes with one count of felony violation of a court
order.1 The information alleged that the crime was one of domestic violence, and
that Holmes committed the offense shortly after being released from
incarceration.
Before trial, Holmes sought a bifurcated proceeding where the rapid
recidivism aggravating factor would be determined separately after the guilt
phase of the trial. The State agreed that should the jury return a guilty verdict, the
same jury would be brought back to hear testimony regarding the aggravating
circumstance. At the close of evidence on the guilt phase, counsel and the court
1The State also initially charged Holmes with one count of first degree robbery for allegedly
stealing the car, but lateramended the information to drop this count because itwas unclear whether
Holmes or Garza owned the car.
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again discussed the process for the bifurcated proceeding on the aggravating
factor. Defense counsel conferred with Holmes, who then stipulated to the rapid
recidivism aggravating factor.
The jury convicted Holmes of felony violation of a court order. Given
Holmes' stipulation, the jury was not asked to determine if this was a crime of
domestic violence, and instead, the court made a finding that that a "Crime of
Domestic Violence as defined in RCW 10.99.020 was pled and proved .. .." CP
at 45. With an offender score of 17, Holmes was subject to the statutory
maximum of 60 months. The court imposed a drug offender sentencing
alternative with 30 months of incarceration and 30 months of community custody.
Holmes appeals his sentence, and in his pro se statement of additional grounds,
he challenges his conviction.
DISCUSSION
Domestic violence designation. Holmes argues the portion of his
judgment and sentence that designates his conviction for felony violation of a
court order as one of "domestic violence" should be stricken because the jury
was never asked to determine whether the crime was one of domestic violence.
He contends that this designation could lead to increased punishment. We
disagree.
The right to a jury trial, as specified in the Sixth Amendment of the United
States Constitution and article I, sections 21 and 22 of the Washington
Constitution, requires "that a sentence be authorized by the jury's verdict." State
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v. Williams-Walker. 167 Wn.2d 889, 896, 225 P.3d 913 (2010). Thus, due
process requires that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New
Jersey. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also
Blakelv v. Washington. 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004) and Williams-Walker, 167 Wn.2d at 896-97.
In State v. Hagler. 150 Wn. App. 196, 201, 208 P.3d 32 (2009), this court
explained that the King County prosecutor designates crimes arising from
"domestic violence" in charging documents, so that the justice system can
"'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'" (quoting RCW 10.99.010). We also held that this "designation need
not be proven to a jury under Blakelv." ]d. (citing Blakelv, 542 U.S. 296, 124 S.Ct.
2531: State v.Winston, 135 Wn. App. 400, 406-10, 144 P.3d 363 (2006)). A trial
court can make this finding on its own because it "'does not itself alter the
elements of the underlying offense '" Hagler, 50 Wn. App. at 201 (quoting
State v.O.P., 103 Wn. App. 889, 892, 13 P.3d 1111 (2000)). The domestic
violence designation, however, would need to be proven to a jury if it "increases
the defendant's potential punishment." State v. Felix, 125 Wn. App. 575, 577,
105 P.3d 427 (2005).
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Here, it was the trial court that made a finding of domestic violence, and
the parties do not dispute that the jury was not asked to make such a
determination. But the trial court's finding did not increase Holmes' punishment,
and as such, a jury finding was not required for the domestic violence
designation. Hagler. 150 Wn. App. at 201. Holmes nevertheless argues the
domestic violence designation must be vacated because, based on a 2010
amendment to the Sentencing Reform Act, the finding could possibly lead to
increased punishment for future crimes. See Opening Brief of Appellant at 9
(domestic violence finding "will lead to increased punishment should Mr. Holmes
be convicted of a new crime involving domestic violence").
But even assuming Apprendi applies where a factual determination could
increase punishment for future, as-yet-uncommitted crimes, the plain language of
the statutory amendment excludes itfrom affecting Holmes. Indeed, RCW
9.94A.525(21)(a) as amended in 2010 affects offender scores only ifthe
"domestic violence as defined in RCW 9.94A.030 was plead and proven after
August 1, 2011." Here, Holmes' offense was plead in an information on January
13, 2011, before the August 1, 2011 date specified in RCW 9.94A.525(21)(a).
The domestic violence designation thus cannot increase Holmes' potential
punishment, and the trial court did not err by imposing the designation.
Rapid recidivism aggravating factor. Holmes next argues his sentence
must be vacated because the rapid recidivism aggravating factor was not found
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by the jury, and "Mr. Holmes did not waive the right to a trial by jury on this factor,
either orally or in writing." Opening Brief at 10. We disagree.
A record sufficiently demonstrates waiver of the right to a jury trial on an
aggravating factor "if the record includes either a written waiver signed by the
defendant, a personal expression by the defendant of an intent to waive, or an
informed acquiescence." State v. Cham, 165 Wn. App. 438, 448, 267 P.3d 528(2011). Additionally, the facts supporting an aggravating factor need not be
proven to a jury beyond a reasonable doubt if "the defendant stipulates to the
aggravating facts." RCW 9.94A.537(3). In Cham, we held that the defendant's
apparent understanding of the role of a jury, combined with defense counsel
twice telling the court the defendant wanted to waive a jurytrial, overcame any
presumption of lack of a knowing waiver:
Cham's counsel twice told the court that she had consulted with Cham
and that he wanted to waive his right to a jury trial. First, without Cham
present, defense counsel told the court, "I spoke with my client and he has
agreed to waive jury for determining the aggravating factor of rapid
recidivism." Later, with Cham in attendance, defense counsel stated, "[F]or
the record, Mr. Cham, after consultation, has waived the presence of the
jury for a decision on the aggravating factor of rapid recidivism, and, the
jury has been dismissed at this point." Also, during the court's colloquy
with Cham to determine the adequacy of his interpreters, Cham showed
his knowledge of the function and role of the jury. As noted by the State,
Cham also invoked his right to a jurytrial on the underlying charges twice
before agreeing to a bench trial on rapid recidivism. The specific facts of
this case, including Cham's colloquy with the court about the role of a jury,
his jury trial experience, and the unchallenged statements of his counsel,
overcome any presumption that he did not make a knowing, intelligent,
and voluntary waiver. They establish an informed acquiescence.
Cham, 165 Wn. App. at 449.
Similar to Cham, the record here shows that Holmes was informed of and
acquiesced or stipulated to waiving a jury trial on the aggravating factor of rapid
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recidivism. Holmes understood the function and role of the jury. He invoked his
right to a jury trial on the underlying charges. He was also present for extensive
pre-trial discussion and planning for a bifurcated proceeding where the
aggravating factor would be determined separately after the guilt phase of the
trial.
Indeed, with Holmes present, the State agreed that should the jury return
a guilty verdict, the same jury would be brought back to hear testimony regarding
the aggravating circumstance. At the close of evidence on the guilt phase,
Holmes was present when counsel and the court, while waiting for the jury to
return a verdict, again discussed the process for the bifurcated proceeding on the
aggravating factor. At this point, defense counsel conferred with Holmes, who
then stipulated to the rapid recidivism aggravating factor:
The Court: ... well, let's let Ms. Rivas talk to her client.
Ms. Rivas: And, your Honor, Mr. Holmes and I had conferred previously
about this. I have spoken with him again this morning, and I appreciate the
Court's indulgence. We would stipulate to the aggravator should the jury
come back with a guilty verdict in this case as it doesn't add anything to
his score. Mr. Holmes has 14 or 15 points listed on his criminal history. It
seems unlikely to me the State would fail to prove, you know, seven of
those, which at that point, it would make a difference for Mr. Holmes. So
we would stipulate to the aggravator so that becomes an issue.
RP (11/1/11) at 6-7. In sum, the facts in the record here establish an informed
acquiescence or stipulation to the aggravating factor of rapid recidivism, and we
reject Holmes' arguments on this issue.
Statement of Additional Grounds. In his RAP 10.10 statement of additional
grounds for review, Holmes argues the police statements in the affidavit of
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probable cause were falsified, and that the prosecutor's office committed
misconduct by pursing charges based on the affidavit. Given this argument relies
upon matters outside the record, it is not reviewable on direct appeal. State v.
McFarland. 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
Holmes next argues that his right to speedy trial was violated. He does
not, however, provide any citations to the record on this issue, or make any
specific argument or authority regarding this argument. As such, we are unable
to review this argument. See RAP 10.3(a)(6) (appellant must provide "argument
in support of the issues presented for review, together with citations to legal
authority and references to relevant parts of the record").
Finally, Holmes appears to contend his conviction for violation of a no-
contact order must be reversed because the judge who issued the order did not
instruct him what to do in a situation where Garza was the person who initiated
contact. Holmes' argument is difficult to follow. He does not explain or develop
his argument, and his only authorities in support of this argument are an
unpublished case and a statute, neither of which are about violation of a no-
contact order. To the extent Holmes is arguing the evidence is insufficient to
demonstrate he knowingly violated the no-contact order, Holmes has not
provided the court with a record adequate for review. To prove this element at
trial, the State introduced the no-contact order, as well as a recording of portions
of the hearing in which the no-contact order was entered. Holmes failed to
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designate, however, these exhibits, and as such, we are unable to review this
argument.
Affirmed.
WE CONCUR:
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