State of Washington v. Nikolayevich Petr Sichkar ( 2020 )

FILED
DECEMBER 15, 2020
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. 37082-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
NIKOLAYEVICH PETR SICHKAR, )
)
Appellant. )
PENNELL, C.J. — Petr Sichkar appeals his sentences for two counts of
misdemeanor assault with sexual motivation. We affirm.
FACTS
Mr. Sichkar entered Alford 1 pleas to two counts of fourth degree assault with
sexual motivation, both gross misdemeanors. The pleas were entered as part of a plea
agreement, through which the State agreed to recommend no jail time. As originally
charged, Mr. Sichkar would have faced multiple class A felonies and a sentencing range
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North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
No. 37082-8-III
State v. Sichkar
of 300 months to life. The State amended the charges due to proof problems and a prior
hung jury.
At sentencing, the court heard from one of the victims, who recommended
Mr. Sichkar receive two years’ custody. The court imposed the statutory maximum
sentence of 364 days on each count, to run consecutively. The judge stated he based his
decision in part on Mr. Sichkar’s failure to take responsibility for his offense conduct.
The court was also concerned with the seriousness of Mr. Sichkar’s offense. The judge
stated he was not penalizing Mr. Sichkar for exercising his right to enter an Alford plea.
Mr. Sichkar appeals.
ANALYSIS
Courts have wide discretion in imposing sentences for misdemeanors and gross
misdemeanors. State v. Anderson, 151 Wn. App. 396, 402, 212 P.3d 591 (2009).
Misdemeanors and gross misdemeanors are not governed by the Sentencing Reform Act
of 1981, chapter 9.94A RCW. RCW 9.94A.010; State v. Snedden, 149 Wn.2d 914, 922,
73 P.3d 995 (2003). As a consequence, sentences for misdemeanor offenses are not
restricted by guideline ranges or the real facts doctrine. See RCW 9.94A.530(2). A court
imposing sentence for a misdemeanor has broad discretion to issue a sentence up to the
statutory maximum. Anderson, 151 Wn. App. at 402.
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No. 37082-8-III
State v. Sichkar
Mr. Sichkar claims the sentencing judge was prohibited from considering his
lack of responsibility at sentencing. This proposition lacks legal authority and is
unpersuasive. A defendant’s acceptance of criminal responsibility, or lack thereof, is
highly relevant to sentencing. In fact, federal court judges are expected to take a
defendant’s acceptance of responsibility, or lack thereof, into account in almost every
criminal case. See U.S. SENTENCING GUIDELINES COMM'N, GUIDELINES MANUAL § 3E1.1
(Nov. 2018).
Crediting acceptance of responsibility does not penalize a defendant for exercising
a constitutional right. There is no constitutional right to plead guilty, let alone a right to
enter an Alford plea. See State v. Bowerman, 115 Wn.2d 794, 799, 802 P.2d 116 (1990).
A defendant who enters an Alford pleas denies guilt and typically (though not necessarily)
refuses to apologize or express remorse for criminal conduct. Nothing prohibits a judge
from taking such information into account in exercising sentencing discretion. See Bryan
H. Ward, A Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford
Plea, 68 MO. L. REV. 913, 923 (2003).
Mr. Sichkar’s other allegations that the judge considered unproven facts or
usurped the executive role in imposing his sentence are unsupported by the record.
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No. 37082-8-III
State v. Sichkar
CONCLUSION
The judgment and sentence is affirmed.
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.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Korsmo, J.
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