State Of Washington, V. Connor William Daniels ( 2024 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    No. 84776-7-I
    Respondent,
    DIVISION ONE
    v.
    UNPUBLISHED OPINION
    CONNOR WILLIAM DANIELS,
    Appellant.
    CHUNG, J. — Connor Daniels pleaded guilty to several sex offenses. At
    sentencing, the trial court denied his request for a special sex offender
    sentencing alternative (SSOSA). He alleged ineffective assistance of counsel
    because his attorney failed to move for recusal of the sentencing judge after the
    judge disclosed that she had represented the victim’s mother more than six years
    earlier on a civil matter. He also raises errors in his sentence, which the State
    concedes.
    Because Daniels does not establish either deficient performance or
    prejudice, we deny the claim of ineffective assistance of counsel and affirm his
    convictions and sentence. However, we remand to the sentencing court to
    amend his judgment and sentence to reduce his term of community custody and
    strike the Victim Penalty Assessment.
    No. 84776-7-I/2
    FACTS
    Daniels pleaded guilty to three counts of rape of a child in the third degree
    and one count of indecent liberties. He agreed to an offender score of 13,
    resulting in a standard sentencing range of 87 to 116 months of incarceration. At
    the time of the plea, the State reserved its sentencing recommendations pending
    the outcome of a presentence investigation report and additional information from
    Daniels. The State specified that if it agreed to a SSOSA, the recommendation
    would be 12 months in full custody, and if it opposed a SSOSA, the
    recommendation would be a standard range of 87 to 116 months in custody.
    During the plea hearing, the judge told the parties that when preparing for
    the proceedings, she became aware that she had previously represented the
    victim’s mother. She disclosed that while in private practice, more than six years
    before, she had represented the mother in a civil matter. The judge elaborated,
    “It was a limited form of representation. Obviously it wasn’t regarding any of
    these allegations which happened later, and I certainly have no concern about
    my ability to be fair and impartial.” When asked, both parties stated they had no
    concerns about the information disclosed.
    At sentencing, the State asked the court to impose the low end of the
    standard range sentence, 87 months, rather than a SSOSA. The State’s first
    reason for this recommendation was that the victim did not support the
    alternative sentence, and “under the SSOSA statute, . . . the Court should give
    2
    No. 84776-7-I/3
    great weight to that.” 1 Additionally, the State did not believe a SSOSA would
    serve a purpose because the treatment provider assessed Daniels as low risk to
    reoffend and recommended only 12 to 18 months of treatment: “if he’s not a risk
    to the community and needs very little treatment, I see no reason for a SSOSA.”
    The State argued, “[W]hen I look at this evaluation and the DOC
    recommendation, I see a very low-risk offender who is only engaging in this
    because of his high offender score.” The State explained that Daniels had a high
    offender score due to four prior convictions for second degree burglary. In
    formulating a sentencing recommendation, the State considered that Daniels
    “obtained a very favorable recommendation on that first case, and he reaped the
    benefits of a very low sentence on that. He served four months in custody and
    then did four months on community service.” The State noted that Daniels
    committed the offenses at issue while undergoing adjudication on the burglaries.
    According to the State, this history “shows he doesn’t take the court system or
    the law seriously.”
    After the State made its recommendation, the victim and several friends
    and family members made statements about the impact of Daniels’ actions. The
    victim gave her opinion on the possibility of a SSOSA: “Connor Daniels is
    seeking a shortened confinement by participating in Washington State’s Special
    1 The court must “consider the victim’s opinion whether the offender should receive a
    treatment disposition under this section. The court shall give great weight to the victim’s opinion
    whether the offender should receive a treatment disposition under this section.” RCW
    9.94A.670(4). In fact, if a SSOSA is imposed contrary to the victim’s opinion, the court must enter
    written findings stating its reasons for imposing the treatment alternative. RCW 9.94A.670(4).
    3
    No. 84776-7-I/4
    Sex Offender Sentencing Alternative Program. I would like the Court to deny his
    request because the sentence would not be commensurate with the magnitude
    of his crimes.” The victim’s mother explained that she “unknowingly led the
    monster to my daughter” and failed to protect her. She told the court that
    Daniels’s actions had created a distance in the family that they were looking to
    the court to rectify. She concluded with an anecdote,
    [Daniels] once told me that he doesn’t feel things the same way that
    other people do. Though I was taken aback at the time, I thought
    that he meant only that he was out of touch with his own feelings.
    Now, however, I understand that he meant it exactly as he said it:
    that he does not feel things.
    The defense followed these statements with a request for a SSOSA with
    12 months in custody and 75 months of community supervision. Daniels noted
    the 18 community support letters submitted on his behalf and explained that
    “contrast” from the community members “doesn’t change that he committed the
    offenses. It doesn’t change the harm that he caused. But it changes whether the
    person before you today is appropriate for a . . . special sex offender sentencing
    alternative compared to the person who, three years ago, committed the
    offense.” Daniels also had friends and family speak on his behalf.
    The court acknowledged that Daniels qualified for a SSOSA. The court
    weighed various factors in determining the sentence, including the consistency in
    sentencing, protecting the public, community benefit from the alternative
    sentence, Daniels’s youth, and his risk to reoffend. Additionally, as required by
    statute, the court considered the victim’s strong opposition to the SSOSA. The
    4
    No. 84776-7-I/5
    court found that 12 months was too lenient “in light of the extensive
    circumstances of the offense.” The court admitted, “This is a very difficult
    calculation in my mind because the Court’s options are rather extreme in terms of
    12 months versus 87 to 106 months,” but “[a]fter great consideration and frankly
    with a heavy mind,” the court declined the SSOSA. The court imposed 87 months
    of incarceration, the low end of the standard range, and 36 months of community
    custody.
    Daniels appeals.
    DISCUSSION
    I.     Ineffective Assistance of Counsel
    Daniels alleges ineffective assistance of counsel because his counsel
    failed to move for recusal after the sentencing judge disclosed her prior
    representation of the victim’s mother. According to Daniels, “given the court’s
    own admission that the decision to deny the SSOSA was a difficult one, an
    impartial observer would conclude that the judge’s implicit bias played a
    dominant role in her decision.” We disagree.
    “Courts engage in a strong presumption counsel’s representation was
    effective.” State v. McFarland, 
    127 Wn.2d 322
    , 335, 
    899 P.2d 1251
     (1995). To
    prevail on a claim of ineffective assistance of counsel, a defendant must show (1)
    deficient performance and (2) prejudice. State v. Hendrickson, 
    129 Wn.2d 61
    , 77-
    78, 
    917 P.2d 563
     (1996). Prejudice requires that “there is a reasonable
    probability that except for counsel’s unprofessional errors, the result of the
    5
    No. 84776-7-I/6
    proceeding would have been different.” McFarland, 
    127 Wn.2d at 334-35
    .
    When ineffective assistance of counsel is premised on failure to make a motion,
    defendant must show that the motion likely would have been granted. In re Pers.
    Restraint of Davis, 
    152 Wn.2d 647
    , 711, 
    101 P.3d 1
     (2004). We need not
    consider both deficiency and prejudice if a petitioner fails to prove one. In re
    Pers. Restraint of Crace, 
    174 Wn.2d 835
    , 847, 
    280 P.3d 1102
     (2012).
    Defendants have a constitutional right to be tried and sentenced by an
    impartial court. State v. Solis-Diaz, 
    187 Wn.2d 535
    , 539, 
    387 P.3d 703
     (2017);
    U.S. Const. amends. VI, XIV; Wash. Const. art. I, § 22. Under the appearance of
    fairness doctrine, a judicial proceeding is valid if a reasonably prudent,
    disinterested observer would conclude that the parties received a fair, impartial,
    and neutral hearing. Solis-Diaz, 
    187 Wn.2d at 540
    . “The law requires more than
    an impartial judge; it requires that the judge also appear impartial.” 
    Id.
     Judges
    should disqualify themselves when their impartiality might be reasonably
    questioned. State v. Chamberlin,
    161 Wn.2d 30
    , 41, 
    162 P.3d 389
     (2007); see
    also CJC 2.11(A). A judge must disqualify if they have “a personal bias or
    prejudice concerning a party or a party’s lawyer.” CJC 2.11(A)(1).
    “A judge is presumed to perform [their] functions regularly and properly,
    without bias or prejudice.” State v. Leon, 
    133 Wn. App. 810
    , 813, 
    138 P.3d 159
    (2006). A party asserting violation of the appearance of fairness must show a
    judge’s actual or potential bias. Solis-Diaz, 
    187 Wn.2d at 540
    . Whether a judge’s
    6
    No. 84776-7-I/7
    impartiality might be questioned is an objective test and assumes a reasonable
    observer knows and understands all the relevant facts. 
    Id.
    While Daniels asserts “it is clear that the victim’s mother is requesting that
    the judge, her former attorney, help heal her family by denying Daniels’ request,”
    he has not provided any reason to suggest the judge could not act with the
    required impartiality. The judge disclosed that prior representation of the victim’s
    mother occurred more than six years before and was “a limited form of
    representation” on a civil matter. The judge explicitly stated that she had “no
    concern” about her ability to be fair and impartial. Given the remoteness in time
    and the limited representation on a different subject matter, the judge’s
    disclosure does not raise issues as to the appearance of fairness. See State v.
    Gamble, 
    168 Wn.2d 161
    , 188-89, 
    225 P.3d 973
     (2010) (no appearance of
    fairness concern where the trial judge for new charges, brought by the State
    against a defendant after original convictions were vacated, had represented
    defendant’s ex-wife in her dissolution action fourteen years prior, while the
    original murder charges were pending). Given the lack of evidence of bias or the
    judge’s inability to act impartially, Daniels’s counsel was not deficient for failing to
    move for recusal.
    Moreover, Daniels has not shown any evidence of bias during sentencing.
    Any concerns that the victim’s mother’s emotional request might influence the
    sentence were specifically addressed by the trial court. The court stated, “for as
    much emotion as I very much understand there is in this room and for everyone
    7
    No. 84776-7-I/8
    involved, the Court and I am required to take that emotion out of it.” And further,
    “I don’t -- and I can’t -- consider emotion or any sort of desire to send a message.
    That’s certainly not appropriate for me to consider.” The court then went on to
    provide extensive detail regarding the general factors courts consider in
    sentencing, as well as the specific factors for a SSOSA. 2 The court then
    explained these factors as they related to Daniels. In considering Daniels’s risk to
    reoffend, the court noted his use of “cognitive distortions to reduce [his] personal
    culpability,” and blaming the victim. The court also considered Daniels’s age and
    impulsivity but concluded, “this wasn’t just one event that involved impulsivity.
    This was many events over a period of time, and I think that’s a distinguishing
    factor in my mind when we think about impulsivity in young adults.” Finally, the
    court gave great weight to the victim’s opposition to the sentencing alternative.
    Weighing all these factors, the court concluded that “upon considering all the
    circumstances here, I do find that 12 months is too lenient in light of the
    extensive circumstances of the offense.” The court then exercised its discretion
    to impose the low end of the standard range sentence.
    Daniels has not demonstrated that a different judge would have granted
    his request for a SSOSA, given that the victim’s opposition and Daniels’s high
    offender score and short SSOSA recommendation would have remained
    2 In sentencing, the court considers “promoting respect for the law, providing punishment
    that is just, ensuring that punishment for a criminal offense is proportionate to the seriousness of
    the offense and . . . criminal history.” The court also tries to ensure consistency in sentences for
    similar offenses, as well as protection of the public, opportunities for individual improvement, and
    reduction of the risk of reoffending.
    8
    No. 84776-7-I/9
    substantial factors consideration. As a result, Daniels cannot establish prejudice
    from his counsel’s failure to move for the judge’s recusal as required for a
    successful ineffective assistance of counsel claim.
    II.    Errors in the Judgment and Sentence
    Daniels alleges two errors in his judgment and sentence require remand.
    The State concedes both errors. We accept the concessions.
    First, the imposition of 36 months of community custody extends Daniels’s
    sentence beyond the statutory maximum. Indecent liberties is a class B felony
    with a statutory maximum of 120 months of confinement. RCW 9A. 44.100(2)(a);
    RCW 9A.20.021(1)(b). The trial court imposed 87 months of incarceration and 36
    months of community custody, amounting to 123 months and exceeding the
    statutory maximum for Daniels’s crime. “[W]henever an offender’s standard
    range term of confinement in combination with the term of community custody
    exceeds the statutory maximum for the crime” the court must reduce the term of
    community custody. RCW 9.94A.701(10). Because trial court did not reduce the
    community custody term at sentencing, the case must be remanded to amend
    the judgment and sentence to remove the excess three months of community
    custody.
    The second conceded error is the imposition of the $500 Victim Penalty
    Assessment (VPA). While this case was pending on appeal, the legislature
    enacted RCW 7.68.035(4) which prohibits the court form imposing the VPA “if the
    court finds that the defendant, at the time of sentencing, is indigent.” Here, the
    9
    No. 84776-7-I/10
    court found Daniels indigent, and the State agrees that RCW 7.68.035(4) applies.
    On remand, the trial court must strike the VPA from the judgment and sentence.
    We affirm the conviction but remand to amend the judgment and sentence
    in a manner consistent with this opinion.
    WE CONCUR:
    10
    

Document Info

Docket Number: 84776-7

Filed Date: 1/22/2024

Precedential Status: Non-Precedential

Modified Date: 1/22/2024