State Of Washington, V Lloyd E. Shaffer

Filed
Washington State
Court of Appeals
Division Two
January 29, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50557-6-II
Respondent,
v.
LLOYD EUGENE SHAFFER, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Lloyd Eugene Shaffer appeals his standard range sentence imposed
following his guilty plea to witness tampering. He argues the sentencing court abused its discretion
in not granting his motion for a continuance. We disagree and affirm Shaffer’s sentence.
FACTS
Shaffer agreed to plead guilty to witness tampering.1 In exchange, the State agreed to
recommend the low end of the standard range sentence. Shaffer was free to request an exceptional
sentence downward.
On March 21, 2017, the court accepted Shaffer’s guilty plea and set sentencing for 38 days
later at the request of defense counsel who wanted time “to arrange for some appropriate
evaluations that would help the court.” Report of Proceedings (RP) (Mar. 21, 2017) at 13.
1
Shaffer also pleaded guilty to two counts of violation of a no-contact order, but the sentence on
those convictions was suspended and are not the subject of this appeal.
50557-6-II
On April 28, the day of sentencing, defense counsel requested a 30-day continuance so he
could hire an investigator to obtain information about Shaffer’s former gang involvement.2
Defense counsel clarified that he needed to explore how Shaffer’s prior gang activity created
“some of the difficulties that he is facing in his life that led to this incident,” which could be a
mitigating factor for an exceptional sentence downward. RP (Apr. 28, 2017) at 15. Defense
counsel acknowledged, however, that the gang activity “ha[d] nothing to do with the incident
itself.” RP (Apr. 28, 2017) at 14.
The court noted that former gang involvement was not a statutory mitigating factor.
Defense counsel argued the list of mitigators was not an exclusive list and requested time to get
“some testimony” so the court could “truly appreciate what all was going on here.” RP (Apr. 28,
2017) at 23. The court, however, did not agree that the information was material and concluded
that there was not “much to be gained from any additional delay.” RP (Apr. 28, 2017) at 10. The
court explained, “that’s why you got a five-week continuance, and here we are.” RP (Apr. 28,
2017) at 23. The court denied the continuance and the matter proceeded to sentencing.
Shaffer had an offender score of 9+ and a standard range sentence of 51-60 months. The
State recommended a 51-month sentence, the low end of the standard range.
The jail chaplain spoke on Shaffer’s behalf at the sentencing hearing. He stated that Shaffer
was “very dedicated to seeking change.” RP (Arp. 28, 2017) at 39. Shaffer also spoke at the
hearing and allocuted that he was “doing everything that I can to change.” RP (Apr. 28, 2017) at
43. Defense counsel then requested a sentence of 12 months.
2
Shaffer alleges that the State agreed to this continuance, but our record does not show the State’s
acquiescence.
2
50557-6-II
The court sentenced Shaffer to a standard range sentence of 51 months, finding “there is
really no basis for a downward deviation of the sentence.” RP (Apr. 28, 2017) at 48. Shaffer
appeals.
ANALYSIS
Shaffer contends he should be resentenced following his guilty plea because the sentencing
court abused its discretion in denying his request for a continuance. We disagree.
We review the denial of a continuance for an abuse of discretion. State v. Flinn, 154 Wash. 2d
193, 199, 110 P.3d 748 (2005). A court abuses its discretion when it bases its decision on untenable
or unreasonable grounds. State v. Downing, 151 Wash. 2d 265, 272, 87 P.3d 1169 (2004). In
exercising its discretion, a court may properly consider
the necessity of reasonably prompt disposition of the litigation; the needs of the
moving party; the possible prejudice to the adverse party; the prior history of the
litigation, including prior continuances granted the moving party; any conditions
imposed in the continuances previously granted; and any other matters that have a
material bearing upon the exercise of the discretion vested in the court.
Trummel v. Mitchell, 156 Wash. 2d 653, 670-71, 131 P.3d 305 (2006).
A defendant generally cannot appeal a standard range sentence. RCW 9.94A.585(1); State
v. Williams, 149 Wash. 2d 143, 146, 65 P.3d 1214 (2003). He or she can only appeal if the sentencing
court violated the constitution or failed to follow sentencing procedural requirements of the
Sentencing Reform Act of 1981, chapter 9.94A RCW. State v. Osman, 157 Wash. 2d 474, 481-82,
139 P.3d 334 (2006).
A trial court “may impose a sentence outside the standard sentence range for an offense if
it finds, considering the purpose of [the SRA], that there are substantial and compelling reasons
justifying an exceptional sentence.” RCW 9.94A.535. A statutory list of mitigating factors to
support a court’s imposition of an exceptional sentence below the standard range if established by
3
50557-6-II
a preponderance of the evidence exists. RCW 9.94A.535(1). The factors are “illustrative only and
are not intended to be exclusive reasons for exceptional sentences.” RCW 9.94A.535(1).
However, nonstatutory factors supporting an exceptional below-range sentence must “relate to the
crime, the defendant’s culpability for the crime, or the past criminal record of the defendant.” State
v. Law, 154 Wash. 2d 85, 89, 110 P.3d 717 (2005).
Here, because the court previously granted Shaffer additional time to prepare his argument
for a potential sentence below the standard range, and because Shaffer did not provide a material
reason to delay sentencing further, the sentencing court had tenable grounds to deny Shaffer’s
request for a continuance.
Shaffer next argues the sentencing court violated the real facts doctrine because the court
considered facts outside what Shaffer acknowledged and failed to grant an evidentiary hearing on
the points.3 We disagree.
The real facts doctrine requires a defendant’s sentence to be based on his current
conviction, his criminal history, and the circumstances of the crime. State v. Morreira, 107 Wn.
App. 450, 458, 27 P.3d 639 (2001). But to be entitled to raise a real facts doctrine issue on appeal,
a defendant must first show that he raised a “timely and specific objection” to the sentencing
court’s consideration of the allegedly improper information. State v. Grayson, 154 Wash. 2d 333,
339, 111 P.3d 1183 (2005). Moreover, defendants who receive a standard range sentence must
object to unproven assertions of fact presented at sentencing to preserve error under the real facts
doctrine. State v. Mail, 121 Wash. 2d 707, 712, 854 P.2d 1042 (1993). Shaffer fails to make this
showing. He merely states in his opening brief that he “contested material facts at [the sentencing]
3
Specifically, Shaffer alleges the nature and motive underlying the witness tampering charge and
the nature and reason for his criminal history were all material facts considered by the sentencing
court.
4
50557-6-II
hearing.” Br. of Appellant at 8. He fails to point to a “timely and specific objection.” Grayson,
154 Wash. 2d at 339. Thus, Shaffer is precluded from raising a real facts doctrine issue on appeal.
In sum, the trial court did not abuse its discretion when denying Shaffer’s continuance
request and Shaffer failed to object to unproven assertions of fact to preserve error under the real
facts doctrine. Because Shaffer fails to show an improper sentencing procedure, his standard range
sentence in not appealable.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Worswick, P.J.
Sutton, J.
5