195457MAJ
~
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 19545-7-III
Title of Case: State of Washington
v.
Ralph H. Blakely
File Date: 05/23/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Grant County
Docket No: 98-1-00610-5
Judgment or order under review
Date filed: 11/13/2000
Judge signing: Hon. Evan E. Sperline
JUDGES
------
Authored by John A. Schultheis
Concurring: Dennis J. Sweeney
Frank L. Kurtz
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Douglas D. Phelps
Phelps & Associates
N 2903 Stout Rd
Spokane, WA 99206-4373
Scott R. Staab
Phelps & Associates
2903 N Stout Rd
Spokane, WA 99206
Marletta Giles-Ward
2903 N Stout Rd
Spokane, WA 99206
Counsel for Respondent(s)
John D. Knodell Iii
Pros Atty Grant Co Crthse
P.O. Box 37
Ephrata, WA 98823
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 19545-7-III
)
Respondent, )
) Division Three
v. ) Panel Six
)
HOWARD RALPH BLAKELY, ) PUBLISHED OPINION
)
Appellant. ) FILED May 23, 2002
SCHULTHEIS, J. -- Howard Ralph Blakely pleaded guilty to one count of
second degree kidnapping and one count of second degree assault.
Consistent with the plea agreement, the State recommended the high end of
the standard range. After a sentencing evidentiary hearing, where the
State presented testimony from the victims and mental health professionals,
the trial court imposed an exceptional sentence upward. Mr. Blakely now
appeals, contending the State violated the plea agreement by advocating for
an exceptional sentence. He also challenges the constitutionality of the
sentence and the sentencing hearing. Pro se, he claims he had ineffective
assistance of counsel and alleges various acts of misconduct by the State.
Finding no error, we affirm.
Facts
Mr. Blakely and Yolanda Blakely were married in 1973. They raised
three children: two daughters and their youngest son, Ralphy. The family
acquired considerable real property during the marriage, including a home,
ranch, and development property in Montana; a home and orchard in Grant
County; a lake home; and rental properties. In order to protect this
property from creditors and tax liability, they created a trust known as
the Blakely Farms Trust.
In 1995, Ms. Blakely moved to Spokane from Montana, filed for divorce,
and obtained a restraining order against Mr. Blakely . One year later, the
trustee for the Blakely Farms Trust filed a petition for a declaration of
the validity of the trust and for an accounting. In December 1997, the
Spokane divorce court authorized Ms. Blakely to move into the Grant County
home and to operate the orchard. Her son Ralphy joined her there in June
1998.
On the afternoon of October 26, 1998, about two weeks before the trust
litigation was set to begin, Mr. Blakely surprised Ms. Blakely as she
walked back from her mailbox. He pushed her to the ground, wrapped duct
tape around her mouth and head, and taped her wrists together. Apparently
very angry, he told Ms. Blakely he wanted her to dismiss the dissolution
and trust proceedings. Noting that O.J. Simpson had gotten away with what
he did, Mr. Blakely warned his wife to cooperate or he would kill her and
Ralphy. He told her he had many guns, ammunition, and several knives. He
then forced her to climb into his pickup canopy, where he locked her in a
coffin-like plywood box that he had constructed. The box was about the
same width and length as Ms. Blakely's body and had air holes drilled into
each end. Ms. Blakely heard her husband loading items from the house into
the truck. On several occasions, he opened the lid of the box, pressed a
knife blade to Ms. Blakely's neck or nose, and demanded to know where
various items could be found. As night fell and it became cold, Mr. Blakely
put a quilt over his wife in the box.
Ralphy, age 13, arrived home from football practice after dark. His
father met him in the driveway, told him his mother was in great danger,
and told him not to cause any trouble. They walked to the pickup, where
Ralphy heard his mother yelling from the box. Mr. Blakely ordered Ralphy
to drive his mother's car and warned him that if he ''tried anything,'' Mr.
Blakely would shoot the box with a shotgun. Clerk's Papers (CP) at 626.
Mr. Blakely drove the pickup out of the orchard and headed east, with
Ralphy following in his mother's car. Eventually they stopped at a truck
stop on the outskirts of Moses Lake for gas. When Ralphy and his father
entered the truck stop to pay, Ralphy shouted, ''Call 9-1-1! Help us! He
kidnapped us! He has my mom in a box!'' CP at 627. Mr. Blakely tried to
drag Ralphy to the car, but truckers shouted to him to leave the boy alone.
He released Ralphy, ran to the pickup, and took off. Ralphy jumped on the
pickup bumper and tried to release his mother from the box, but was knocked
off when Mr. Blakely accelerated. Ralphy was left behind at the truck
stop.
During the subsequent trip to Montana, Mr. Blakely removed the tape
from his wife's head and let her sit in the front seat so she could tell
any police who stopped them that she was accompanying him of her own free
will. He was angry because ''Ralphy ruined everything!'' CP at 627. On
occasion, Mr. Blakely forced Ms. Blakely back into the box. In all, she
was locked in the box for over four hours.
They eventually arrived at the house of Mary Gillespie, who lived
close to their Montana home. Mr. Blakely let his wife enter Ms.
Gillespie's house while he called their older daughter and demanded that
she stop the divorce and trust litigation. He also called a stockbroker,
received stock quotations, and gave the broker sell orders. Meanwhile, Ms.
Blakely and Ms. Gillespie surreptitiously planned to call for help. When
Mr. Blakely sent Ms. Gillespie on an errand to a nearby house, she called
the police. Officers soon arrived and Mr. Blakely sent his wife out to
tell them that she had come to Montana voluntarily. Instead, she reported
that she had been kidnapped, and he was arrested without incident.
Mr. Blakely was charged in federal court with two counts of
kidnapping. These charges were later dismissed and the State filed two
charges of first degree kidnapping, each involving domestic violence, in
October 1998. He pleaded not guilty, with a defense of insanity or
diminished capacity.
Mr. Blakely has been diagnosed at various times since 1972 as
suffering from schizophrenia. The trial court in the Blakely Farms Trust
litigation held a hearing in February 1999 to determine whether the court
should appoint a guardian ad litem to represent Mr. Blakely's interests in
the trust and dissolution actions. Based on his psychiatric history and a
psychologist's recent conclusion that Mr. Blakely suffered 'clear mental
deficiencies,' Def.'s Ex. 2, the civil court appointed a guardian ad litem
in early March 1999.
Within days, the State in the criminal action obtained an order for an
evaluation at Eastern State Hospital of Mr. Blakely's competency. After
reviewing Mr. Blakely's 27-year psychiatric history as well as the results
of his current examination, evaluators Dr. Vern Cressey and Dr. Timm
Fredrickson concluded that he had high average intelligence, had never been
a paranoid schizophrenic, and suffered instead from a severe personality
disorder with schizotypal and narcissistic components. Noting his multiple
legal difficulties over the years, their report also surmised that Mr.
Blakely only sought psychiatric treatment when he was 'embroiled in legal
issues.' CP at 70. On the basis of this evaluation, the criminal trial
court entered an order of competency in May 1999.
Because defense counsel continued to have difficulty communicating
with Mr. Blakely , the trial court ordered another evaluation in September
1999 to determine whether Mr. Blakely could assist counsel and appreciate
the import of the criminal proceedings. The report from this round of
evaluations stated that Mr. Blakely began the stay at Eastern with
'elective mutism' and 'struggl{ed} to find something wrong with himself
physically.' CP at 291. In the opinion of the evaluators, he was well
aware of the court proceedings--including the options and consequences of
various pleas--and he had the capacity to understand and assist in his own
defense. Despite the evaluation results, defense counsel demanded a jury
trial on the issue of Mr. Blakely's competency to stand trial. Finding
that RCW 10.77.090 authorizes a pretrial jury determination of competency,
the trial court granted the motion.1
The criminal competency trial was held in April 2000. Mr. Blakely's
counsel sought to introduce the trust court's order appointing the guardian
ad litem. This order included a finding that Mr. Blakely 'is not competent
at this time {March 1999} to comprehend with understanding and intelligence
the significance of the entire legal proceedings and their effect on and
relationship to his best interests.' Def.'s Ex. 1, at 2. Although the
criminal trial court found that the civil court's order was not really an
adjudication of incompetence, it decided to allow admission of the order at
the competency hearing. Later, when defense counsel objected to the trial
court's refusal to instruct the jury that the civil court's order raised a
rebuttable presumption of incompetence, the trial court ruled as a matter
of law that the order appointing the guardian ad litem did not constitute
an adjudication of incompetence. The jury found that Mr. Blakely was
competent to stand trial on the criminal charges.
Trial was set for July 2000. On July 18, the court conducted a
hearing on a plea agreement. The State offered to amend the charges to one
count of second degree domestic violence kidnapping with a deadly weapon
enhancement (RCW 9A.40.030(1), 10.99.020, former 9.94A.125 (1983)) and one
count of second degree domestic violence assault (RCW 9A.36.021(1)(c),
10.99.020). In exchange for the amended charges and a recommendation for a
sentence in the high end of the standard range, Mr. Blakely agreed to an
Alford plea of guilty.2 Although Mr. Blakely complained that he could not
think clearly due to the intolerable conditions in his jail cell, the trial
court eventually determined that Mr. Blakely understood the charges and the
agreement.
At the sentencing hearing two weeks later, Mr. Blakely attempted to
withdraw the guilty plea, claiming he was pressured by his doctors and
lawyers. Finding that it was not credible that Mr. Blakely was under
duress or was misled, the trial court denied the motion to withdraw. The
State then told the court the standard range for the kidnapping charge with
the deadly weapon enhancement was 49 to 53 months and recommended the high
end of that range to run concurrently with a sentence of 12 to 14 months
for the assault. Before pronouncing sentence, the trial court asked for
Mr. Blakely's comments and asked Ms. Blakely to describe her ordeal during
the kidnapping. During her testimony, defense counsel protested that she
was giving new information without being under oath. In response, the
trial court told her to leave out extraneous details. Ultimately, the
trial court rejected the State's recommendation for a standard range
sentence and imposed an exceptional sentence of 90 months for the
kidnapping, citing the aggravating factors of deliberate cruelty and
commission of domestic violence in the presence of a minor child.
In August 2000, Mr. Blakely objected to the exceptional sentence and
the trial court continued the matter for an evidentiary hearing. The court
asked the State to subpoena Ms. Blakely and other witnesses and admitted it
should have held a hearing with witnesses under oath and subject to cross-
examination before imposing the exceptional sentence. Before the
sentencing hearing, Mr. Blakely again moved to withdraw his guilty plea,
arguing that the State violated the plea agreement by advocating for an
exceptional sentence. The trial court found that the State's sentencing
brief did not suggest what the court ought to do, and denied the motion.
At the sentencing hearing held in October 2000, Ms. Blakely , Ralphy,
various mental health experts, and a police officer were examined and cross-
examined. After hearing a statement from Mr. Blakely , the trial court
again imposed an exceptional sentence of 90 months on the kidnapping
charge, to run concurrently with a standard sentence of 14 months on the
assault charge. Mr. Blakely's motion to vacate the sentence was denied in
January 2001 and this appeal followed.
Presumption of Incompetence
Mr. Blakely first challenges the jury instructions given in the
competency trial. He contends the trial court erred in refusing to
instruct the jury that a defendant is presumed incompetent to stand trial
if there is proof of a mental illness adjudication.
Jury instructions are sufficient if they are supported by substantial
evidence, allow the parties to argue their theories of the case, and
properly inform the jury of the applicable law. State v . Irons, 101 Wn.
App. 544, 549, 4 P.3d 174 (2000). Mr. Blakely argued at the competency
trial that the civil court's conclusion that he lacked competence to
represent himself in the trust and dissolution proceedings raised a
presumption of incompetence to stand trial on the criminal charges.
Although the trial court allowed admission of the civil court's findings,
it held as a matter of law that the civil order did not constitute an
adjudication of incompetence. On that basis, the trial court declined to
instruct the jury that a mental illness adjudication rebutted the
presumption of competence. The trial court properly found that neither the
evidence nor the law supported Mr. Blakely's proposed instruction.
The test for competency to stand trial is whether the defendant is
able to understand the proceedings against him or her and can assist in his
or her defense. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16
P.3d 610 (2001). A rebuttable presumption of mental incompetency is raised
by proof of a mental illness adjudication. State v . Smith, 97 Wn.2d 801,
803, 650 P.2d 201 (1982); State v . Bonner, 53 Wn.2d 575, 587-88, 335 P.2d
462 (1959). On the other hand, '{i}t is the fact of mental incompetency,
and not the adjudication of mental illness, that determines one's inability
to form an intent to commit an offense, or his inability, after an offense
has been committed, to aid in his defense.' Id. at 586 (emphasis omitted).
The civil court deciding Mr. Blakely's trust and dissolution cases
found that the weight of past and current psychological evaluations
supported a finding that Mr. Blakely was not competent to understand the
nature and complexity of the trust issues. Consequently, a guardian ad
litem was appointed to represent his interests in those cases only. Mr.
Blakely was not, however, adjudged to have a mental illness or to be
generally incompetent. As the civil court stated in its order appointing
the guardian ad litem, 'The court's findings and conclusions in this case
shall have no precedential or preclusive effect on any other civil or
criminal proceeding involving Ralph H . Blakely , Jr. and the matters at
issue therein.' Def.'s Ex. 1, at 2. Because the civil court's order did
not presume to apply beyond the time frame and issues of the trust and
dissolution proceedings, it did not constitute an actual adjudication of
mental illness. The order served as relevant evidence of Mr. Blakely's
ability to understand the criminal proceedings and to assist in his
defense, but it did not give rise to a presumption that Mr. Blakely was
incompetent. Consequently, the order did not support an instruction
declaring that proof of a prior mental illness adjudication raised a
presumption of incompetence. Irons, 101 Wn. App. at 549.
Violation of the Plea Agreement
Mr. Blakely's next contention is that the prosecutor violated the plea
agreement by advocating for an exceptional sentence upward. He argues that
the prosecutor effectively undercut the recommendation of a standard
sentence by discussing in the sentencing brief recent decisions on the
factual bases for exceptional sentences and by eliciting testimony at the
sentencing hearing to support aggravating factors.
A plea bargain is a contract between the criminal defendant and the
prosecutor. State v . Talley, 134 Wn.2d 176, 182, 949 P.2d 358 (1998);
State v . Sledge, 133 Wn.2d 828, 838-39 n.6, 947 P.2d 1199 (1997). Due
process requires the prosecutor to adhere to the terms of the contract by
recommending the agreed-upon sentence. Talley, 134 Wn.2d at 183; Sledge,
133 Wn.2d at 839. The prosecutor's conduct at the sentencing hearing must
not undercut the plea bargain:
Although the recommendation need not be made enthusiastically, the
prosecutor is obliged to act in good faith, participate in the sentencing
proceedings, answer the court's questions candidly in accordance with
RPC 3.3 and, consistent with RCW 9.94A.460, not hold back relevant
information regarding the plea agreement.6
6RPC 3.3 states:
'(a) A lawyer shall not knowingly:
'(1) Make a false statement of material fact or law to a tribunal.'
'A prosecutor, like any other attorney, has a duty of candor toward
the tribunal which precludes it from making a false statement of material
fact or law to such tribunal.' {State v .} Coppin, 57 Wn. App. {866,} 874
n.4{, 791 P.2d 228 (1990)}.
RCW 9.94A.460 states in part:
'The prosecutor shall not agree to withhold relevant information from
the court concerning the plea agreement.'
Talley, 134 Wn.2d at 183. Mere participation in an evidentiary hearing
convened by the court to determine whether evidence supports an exceptional
sentence will not undercut the State's agreed-upon sentence recommendation.
Id. at 185-86.
Mr. Blakely cites In re Pers. Restraint of Palodichuk, 22 Wn. App.
107, 589 P.2d 269 (1978) for the principle that less than wholehearted
support for the terms of the plea bargain can constitute a breach. In
Palodichuk, the prosecutor recommended a suspended sentence and probation,
but then told the court he had obtained new information that gave him
''second thoughts about that recommendation.'' Id. at 109 (emphasis
omitted). The prosecutor's reservations did more than express less than
wholehearted support for the terms of the plea bargain, they seriously
undercut the agreement. See Talley, 134 Wn.2d at 184 (discussing
Palodichuk).
Similarly, the prosecutor in Sledge recommended a standard range
sentence for a juvenile offense, but then extensively examined the
probation counselor concerning her reasons for recommending an exceptional
sentence, presented the testimony of a parole officer who reported problems
with the juvenile, and gave a detailed summary of the aggravating factors
to the court. The Supreme Court found that the prosecutor's fervor in
setting out and emphasizing evidence supporting the aggravating factors
undercut the plea bargain. Sledge, 133 Wn.2d at 842-43.
As the Supreme Court stated in Talley, 134 Wn.2d at 183, the
prosecutor need not make the agreed sentencing recommendation
enthusiastically, but must not appear to advocate for an exceptional
sentence. The State's mere participation in an evidentiary hearing--
presenting relevant evidence to the court and responding to its inquiries--
will not constitute a breach of the plea bargain, while advocacy for an
exceptional sentence by placing emphasis on aggravating factors will. See
Talley, 134 Wn.2d at 186; Sledge, 133 Wn.2d at 843.
Here, the prosecutor consistently told the court he recommended the
high end of the standard range. At the July 2000 sentencing hearing, the
court found two aggravating factors--deliberate cruelty and domestic
violence in the presence of the minor child--and imposed an exceptional
sentence. When the trial court later decided it needed to conduct an
evidentiary hearing to consider the evidence supporting an exceptional
sentence, the prosecutor responded that '{w}e of course are not proponents
of an exceptional sentence in these proceedings,' but asked if he should
subpoena witnesses. Report of Proceedings (RP) at 563. The court asked
him to subpoena Ms. Blakely and any witnesses who observed Ralphy during
the kidnapping incident. However, the court added, the evidentiary hearing
was probably an 'exercise in futility,' because there was no dispute that
Mr. Blakely put his wife in an apple wood box and kept her there in the
presence of Ralphy. RP at 564. Apparently the trial court intended to
impose an exceptional sentence based on the record, regardless of the
State's recommendation.
Most of the evidence challenged by Mr. Blakely was presented by the
State in response to assertions by the defense. For instance, before the
evidentiary hearing, the State filed a response brief to Mr. Blakely's
motion for a standard range sentence. Mr. Blakely had argued that Apprendi
v . New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)
prohibited the trial court from imposing an exceptional sentence based on
facts that had not been established by a jury beyond a reasonable doubt.
The State's response brief examined the precedential effect of Apprendi and
concluded that '{t}he court is not required to provide the defendant with a
jury trial on the issue of whether an exceptional sentence will be
imposed.' CP at 578. Defense counsel moved to withdraw the guilty plea on
the basis that the State's response brief violated the plea agreement by
advocating for an exceptional sentence. In response, the prosecutor
stated, 'I hope that I have never at any point done anything that the court
has interpreted as advocating an exceptional sentence in this case, because
I did have an agreement with counsel which prohibited me from doing that.'
RP at 585. In denying the motion to withdraw the guilty plea, the court
found that the State's response brief did not advocate a particular
sentence and did not give 'even the narrowest suggestion of what the court
ought to do.' RP at 586.
As would be expected, the prosecutor's involvement in the evidentiary
hearing was problematical. He was required to conduct examinations and
cross-examinations of the witnesses in a manner that would present an
accurate record to the court, while at the same time refraining from
advocacy for the exceptional sentence he knew the court intended to impose.
See Talley, 134 Wn.2d at 183. During the examination of Ms. Blakely , the
prosecutor asked if she was afraid of Mr. Blakely during the kidnapping.
She answered yes. It was the court, not the prosecutor, who asked a
psychologist defense witness if Mr. Blakely could deliberately act in a
cruel way. The witness answered that he could not make an opinion. Later,
when the State presented the testimony of two mental health witnesses, the
prosecutor anticipated the court's question and asked each of them if Mr.
Blakely had the capacity to be cruel. Both answered that he did.
Following this testimony, the court asked the prosecutor if he wished to be
heard regarding the sentence recommendation. He responded, 'Judge, {I}
don't want to be heard right now. My understanding was that we had an
agreed recommendation for a high end sentence, and that's what I continue
to recommend to the court. Unless counsel wants to deviate from that
recommendation, I don't have anything to say.' RP at 1038.
Compared to the 'second thoughts' expressed in Palodichuk, 22 Wn. App.
at 109, and the detailed summary of aggravating factors given by the
prosecutor in Sledge, 133 Wn.2d at 843, the prosecutor's conduct here does
not rise to advocacy for an exceptional sentence. Unlike in Sledge, where
the State insisted upon the evidentiary hearing with witnesses, here
defense counsel moved for the hearing. As an officer of the court, the
prosecutor was obliged to participate in the hearing, to call witnesses
that would be helpful to the court, and to anticipate the questions the
court wished to ask. See Sledge, 133 Wn.2d at 840. The State walks a thin
line between, on the one hand, maintaining its duty to present relevant
evidence and respond to the sentencing court's inquiries, and on the other
hand, meeting its equally important obligation to uphold the plea
agreement. Talley, 134 Wn.2d at 187. The important point is that the
State must not in the process contradict its recommendation for a standard
range sentence. Sledge, 133 Wn.2d at 840.
On balance, considering the sentencing court's conclusion from the
start that undisputed facts in the record supported an exceptional sentence
based on domestic violence and deliberate cruelty, the prosecutor's conduct
in the evidentiary hearing did not undercut his insistence that he
recommended a standard range sentence. Addressing this issue, the trial
court noted that it tried to pay attention to the prosecutor's conduct
in regard to the difficult position in which the State was put by having
recommended to the court a sentence within the standard range, having the
court indicate that an exceptional sentence may be appropriate, having the
court indicate those subjects that would need to be presented at a
sentencing hearing, and then having the laboring oar in presenting the
testimonial matters to the court.
RP at 1056. The sentencing court concluded that the prosecutor confined
himself to the matters that concerned the court and did not advocate for an
exceptional sentence. The record supports that conclusion. Consequently,
the State did not breach the plea agreement.
Exceptional Sentence
Mr. Blakely next challenges his exceptional sentence. The trial court
found two aggravating factors: (1) Mr. Blakely's conduct during the
kidnapping manifested deliberate cruelty to his wife, former RCW
9.94A.390(2)(a) (1997); and (2) the offense involved domestic violence plus
deliberate cruelty and commission within sight or sound of the victim's
minor child, former RCW 9.94A.390(2)(h )(ii), (iii) (1997). Mr. Blakely
contends the aggravating factors violate the real facts doctrine, former
RCW 9.94A.370(2) (1996). He also contends the sentencing court violated
the holding in Apprendi, 530 U.S. at 490, that requires a jury
determination of the facts used to support an exceptional sentence outside
the maximum range. Finally, he asserts the sentencing hearings violated
due process by preventing defense counsel from cross-examining Ms. Blakely
and by denying him the right to allocution.
I. The Real Facts Doctrine.
Under the Sentencing Reform Act of 1981, a trial court must impose a
sentence within the standard range for the offense unless the court finds
substantial and compelling reasons justifying an exceptional sentence.
Former RCW 9.94A.120(1), (2) (1998); State v . Ferguson, 142 Wn.2d 631, 643-
44, 15 P.3d 1271 (2001). Several nonexclusive mitigating and aggravating
factors are provided in former RCW 9.94A.390 (1997), including the
mitigating circumstance of diminished capacity (former RCW 9.94A.390(1)(e)
(1997)) and the aggravating circumstances mentioned above. In reviewing an
exceptional sentence, this court asks three questions: (1) Are the reasons
given by the sentencing court supported by the record, using the clearly
erroneous standard of review? (2) Do the reasons justify departure from
the standard range as a matter of law? (3) Is the sentence clearly too
excessive or too lenient, using the abuse of discretion standard of review?
Ferguson, 142 Wn.2d at 646.
Mr. Blakely contends the trial court erred as a matter of law in
considering facts that established a more serious crime than that to which
he pleaded guilty. The so-called real facts doctrine of former RCW
9.94A.370(2) (1996) provides that the sentencing court generally may not
use facts that establish a more serious crime or additional crimes as the
basis for a sentence outside the presumptive range. In exchange for
dismissing the charge of first degree kidnapping, the State agreed to allow
Mr. Blakely to plead guilty to second degree kidnapping. As charged in the
original information, the first degree kidnapping count alleged intentional
abduction of a person with the intent to inflict extreme mental distress.
RCW 9A.40.020(1)(d). Second degree kidnapping does not include the same
intent element. RCW 9A.40.030. Mr. Blakely contends the finding of
deliberate cruelty constitutes the same element as intent to inflict
extreme mental distress, in effect allowing the court to sentence him for
the more serious crime.
Deliberate cruelty has been defined as 'gratuitous violence or other
conduct which inflicts physical, psychological, or emotional pain as an end
in itself.' State v . Scott, 72 Wn. App. 207, 214, 866 P.2d 1258 (1993),
aff'd sub nom. State v . Ritchee, 126 Wn.2d 388, 894 P.2d 1308 (1995),
quoted in State v . Copeland, 130 Wn.2d 244, 296, 922 P.2d 1304 (1996). In
Ferguson, 142 Wn.2d at 648-49, the Supreme Court held that deliberate
cruelty could not be used to elevate a sentence for second degree assault
because an element of the charge is the intent to do bodily harm. The
court found that the defendant's charged offense, intent to inflict harm by
exposing another to the human immunodeficiency virus (HIV), implicitly
contains elements that constitute deliberate cruelty. Id. at 651.
Citing Ferguson, Mr. Blakely contends deliberate cruelty is implicitly
the same as the infliction of extreme mental distress element of first
degree kidnapping, and therefore violates the real facts doctrine. But
gratuitous violence with the intent to inflict emotional pain (deliberate
cruelty, Scott, 72 Wn. App. at 214) is not the same as the intent to
inflict extreme mental distress. Even under the precedent of Ferguson,
therefore, the real facts doctrine likely does not preclude deliberate
cruelty as an aggravating factor in an exceptional sentence for second
degree kidnapping. However, recognizing that Ferguson may direct a
different conclusion, we decline to affirm the exceptional sentence on the
basis of deliberate cruelty under former RCW 9.94A.390(2)(a) (1997).
Instead, we find that the domestic violence aggravating factors alone
support the exceptional sentence.
We begin by noting that the real facts doctrine does not apply to the
domestic violence aggravating factors of former RCW 9.94A.390(2)(h ) (1997).
Former RCW 9.94A.370(2) (1996). The real facts statute specifically allows
the court to consider acts of domestic violence that involve deliberate
cruelty or intimidation of the victim as well as acts of domestic violence
committed in the presence of the victim's or offender's minor child.
Former RCW 9.94A.370(2) (1996); former RCW 9.94A.390(2)(h )(ii), (iii)
(1997). Because the trial court found that these aggravating circumstances
also supported a departure from the standard range, the exceptional
sentence is justified as a matter of law.3 State v . Cardenas, 129 Wn.2d 1,
12, 914 P.2d 57 (1996) (an appellate court may uphold an exceptional
sentence if satisfied that the trial court would have imposed the same
sentence without the prohibited aggravating factor).
Mr. Blakely additionally contends that the sentence of 90 months is
excessive in light of the standard range sentence of 13 to 17 months for
second degree kidnapping. Former RCW 9.94A.310 (1998); former RCW
9.94A.320 (1998). He fails to take into consideration the firearm
enhancement of 36 months, which makes the high end of the standard range
for this crime 53 months. Former RCW 9.94A.310(3)(b) (1998). We will not
disturb the trial court's discretion unless we find that no reasonable
judge would have imposed the same sentence. Cardenas, 129 Wn.2d at 13.
Here, the trial court stated that '{t}here is a part of the court's
thinking that suggests that 90 months as an exceptional sentence is an
insufficient judicial response to this conduct.' RP at 1053. Given the
circumstances of the crime, we cannot say that no reasonable judge would
have made the same decision. Cardenas, 129 Wn.2d at 13.
II. Application of Apprendi.
Mr. Blakely contends the United States Supreme Court decision in
Apprendi v . New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000) provides that the factual basis for an exceptional sentence upward
must be submitted to a jury and proved beyond a reasonable doubt. However,
recently the Washington Supreme Court in State v . Gore, 143 Wn.2d 288, 314,
21 P.3d 262 (2001) held that Apprendi does not apply to factual
determinations that support reasons for exceptional sentences upward. Gore
held that Washington's statutory scheme permits a judge to impose an
exceptional sentence within the maximum range determined by the
Legislature. Id. at 313-14. Because the statutory and nonstatutory
aggravating factors neither increase the maximum sentence nor define
separate offenses calling for separate penalties, the Apprendi rule is not
triggered.
Id. at 314. Consequently, the facts supporting the exceptional sentence
here did not have to be submitted to a jury or proved beyond a reasonable
doubt. Id. at 315; see also State v . Hopkins, 109 Wn. App. 558, 569, 36
P.3d 1080 (2001).
III. Due Process and the Sentencing Hearing.
During the first sentencing hearing, defense counsel did not cross-
examine Ms. Blakely during her victim's statement. He now contends he was
entitled by due process to confront the witnesses at the sentencing hearing
and further contends he was not granted a formal opportunity for
allocution.
The Sixth Amendment confrontation clause provides that '{i}n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.' Generally, due process is
satisfied in the context of a sentencing hearing as long as the defendant
has an opportunity to rebut the evidence presented. State v . Strauss, 119
Wn.2d 401, 418-19, 832 P.2d 78 (1992). While the effect of the
confrontation clause on sentencing hearings has not yet been established in
Washington , id. at 414-15, we need not reach this issue here because Mr.
Blakely was given the opportunity to cross-examine Ms. Blakely and all the
other witnesses at the evidentiary hearing. Ms. Blakely's testimony in the
first sentencing hearing constituted a victim impact statement rather than
evidence to support an aggravating factor. See former RCW 9.94A.110
(1998). When she testified as a witness at the subsequent evidentiary
hearing, however, defense counsel cross-examined her as extensively as he
did all the other witnesses.
As for Mr. Blakely's right of allocution, he seems to argue that he
was denied the opportunity to give a formal statement before sentence was
pronounced. A defendant's right of allocution is derived from state
statutes and is not constitutional in nature. In re Pers. Restraint of
Echeverria, 141 Wn.2d 323, 335, 6 P.3d 573 (2000). As with the victim
impact statement, the offender is provided an opportunity to address the
sentencing court before sentence is imposed. Former RCW 9.94A.110 (1998);
Echeverria, 141 Wn.2d at 335. The statute does not require that the
offender's statement be made immediately before imposition of the sentence
and does not require a formal request from the court. Id. at 336.
In this case, the trial court asked Mr. Blakely at the first
sentencing hearing and at the evidentiary hearing if there was anything he
wanted to say. On both occasions Mr. Blakely took the opportunity to
explain to the court his version of the events and the motivations of the
witnesses against him. Although the trial court did not specifically ask
Mr. Blakely if he had anything to say in mitigation of the sentence--the
better course to scrupulously comply with former RCW 9.94A.110 (1998),
according to Echeverria, 141 Wn.2d at 336-37--clearly Mr. Blakely
understood that he was asked whether he had information that supported a
lower sentence.
Pro Se Issues
Mr. Blakely raises additional issues pro se, including contentions
that the State withheld evidence, that the weapon enhancement was added as
retaliation for Mr. Blakely's complaints against jail conditions, and that
his counsel was ineffective.
According to the pro se brief, the State failed to produce the
registration on the truck used in the kidnapping and withheld evidence that
proved Ms. Blakely used poison to control his actions during the
kidnapping. Mr. Blakely also alleges that the prosecutor withheld a copy
of a 1995 social security disability form that shows his wife attempted to
cheat the government by forging Mr. Blakely's name to a false claim.
Besides the fact that Mr. Blakely fails to show how the alleged withholding
of this evidence affected his guilty plea, he also fails to show any
reference in the record to the purported evidence. Matters mentioned in
the brief but not included in the record cannot be considered on appeal.
State v . Stockton, 97 Wn.2d 528, 530, 647 P.2d 21 (1982), cited in State v .
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Similarly, the record shows no evidence to support an inference that
the State added the deadly weapon enhancement in retaliation for Mr.
Blakely's threat to sue Grant County for intolerable jail conditions. In
April 2000, Mr. Blakely filed 'A Claim for Discrimination and Negligence
and Punishment' that alleged he had been forced to live in isolation with
bacterial and viral infections, had been denied an operation that would
have fixed his 'brain functions,' and had been mistreated by inmates and
staff at the jail. CP at 399-400. He requested a settlement of $5 million
on the claim. Beyond the accusations in the claim, nothing in the record
supports the validity of these assertions. The amended information adding
the deadly weapon enhancement to the two first degree kidnapping charges
was filed in July 2000. Although the amendment was made after Mr.
Blakely's discrimination claim, nothing in the record supports an inference
that it was made in retaliation for Mr. Blakely's threat to sue.
Insufficient record also defeats Mr. Blakely's contention that he
received ineffective assistance of counsel. To prove ineffective counsel,
a defendant must show that counsel's representation fell below an objective
standard of reasonableness and that counsel's representation prejudiced the
defendant. McFarland, 127 Wn.2d at 334-35. Attorney competency is
determined based only on the record below. Id. at 335. We engage a strong
presumption that counsel was effective. Id. Mr. Blakely contends his
counsel was deficient in failing to attend his court-ordered mental health
evaluations, in pressuring him to enter into the guilty plea without
explaining the possible sentence, and in failing to gather the necessary
evidence to impeach his wife's testimony.
Defendants in noncapital cases generally do not have a right to have
counsel present during psychological examinations. State v . Decker, 68 Wn.
App. 246, 251, 842 P.2d 500 (1992). Counsel may attend, but strictly as an
observer, not as an active participant. State v . Nuss, 52 Wn. App. 735,
741, 763 P.2d 1249 (1988). When a defense of diminished capacity is
raised, the defendant waives his privilege against self-incrimination. Id.
at 742. Nothing in the record indicates that Mr. Blakely ever requested
the presence of counsel at his mental health evaluations or that the
presence of counsel would have been of any benefit to his case.
The record also fails to show that defense counsel pressured Mr.
Blakely to accept the terms of the plea agreement. A guilty plea must be
entered knowingly, voluntarily, and intelligently. State v . Ross, 129
Wn.2d 279, 284, 916 P.2d 405 (1996). The defendant must understand the
plea's direct sentencing consequences. Id. A claim that the defendant was
coerced to plead guilty must be supported with more than self-serving
allegations. State v . Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984).
During the hearing on the plea agreement held in July 2000, the court
asked Mr. Blakely if he understood the terms of the agreement, the sentence
range, and the fact that the trial court was not bound by the terms of the
agreement to impose the sentence recommended by the State. Mr. Blakely
first asked to die and claimed his mind was not clear due to lack of sleep,
but eventually agreed that he understood. He went over the plea agreement
with the court and with trial counsel before signing. Only later did he
claim his doctors and lawyers pressured him into signing the agreement.
Nothing in the record beyond his bare assertion of fact supports his
allegations that the plea was involuntary.
Finally, the record does not support Mr. Blakely's assertion that
defense counsel failed to investigate evidence that Ms. Blakely
orchestrated the kidnapping by poisoning her husband and controlling his
mind. As with the other claims of ineffective assistance of counsel, our
review on direct appeal is limited to matters within the trial record.
McFarland, 127 Wn.2d at 335. With support for Mr. Blakely's claims
nonexistent in this record, we are compelled to find that defense counsel's
representation was effective.
Affirmed.
/s/
Schultheis, J.
WE CONCUR:
/s/
Sweeney, J.
/s/
Kurtz, J.
1 RCW 10.77.090(1) provides that the trial court may order a defendant who
is suspected to be incompetent to undergo an evaluation for up to 90 days.
After that time, 'if the jury or court, as the case may be, finds that the
defendant is incompetent, the charges shall be dismissed without
prejudice.' Former RCW 10.77.090(3) (1989) (relating to defendants charged
with felonies).
2 See North Carolina v . Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970) (a defendant may plead guilty while disputing the facts alleged
by the prosecution).
3 At oral argument, the State admitted that the trial court was not sure if
the aggravating factor of domestic violence in the presence of the minor
child, standing alone, would support an exceptional sentence. The record
indicates, however, that the trial court considered deliberate cruelty and
domestic violence with deliberate cruelty sufficient to support the
sentence. Whether or not deliberate cruelty under former RCW
9.94A.390(2)(a) (1997) could be used to elevate the sentence for second
degree kidnapping, the alternate basis of domestic violence with deliberate
cruelty supports the exceptional sentence here. State v . Cardenas, 129
Wn.2d 1, 12, 914 P.2d 57 (1996).
>>