STATE v. HOGGATT, 28830-3-II (Wash.App. 8-19-2003)

STATE OF WASHINGTON, Respondent, v. JACK DEWAYNE HOGGATT, JR.,

No. 28830-3-IIThe Court of Appeals of Washington, Division Two.
Filed: August 19, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Cowlitz County Docket No: 99-1-00493-8 Judgment or order under review Date filed: 04/25/2002

Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.

Counsel for Respondent(s), Michelle L Shaffer, Cowlitz Co Pros Attorney Office, 312 SW 1st Ave, Kelso, WA 98626-1799.

BRIDGEWATER, J.

Jack Dewayne Hoggatt, Jr., appeals his sentence on remand. He argues that the court on remand violated his due process rights and failed to exercise its discretion when it (1) focused on the fact he had exercised his right to appeal, and (2) ignored his argument in support of an exceptional sentence downward. We affirm.

Facts
On July 29, 1999, a jury found Hoggatt guilty of theft of a firearm and first degree unlawful possession of a firearm after he took a firearm from this father and refused to return it unless his father gave him money. See State v. Hoggatt, 108 Wn. App. 257, 30 P.3d 488 (2001). The trial court imposed consecutive sentences of 20 months on the theft of a firearm conviction and 87 months on the unlawful possession conviction for a total sentence of 107 months.

The standard range on the theft conviction was 77-102 months, thus, the 20-month sentence on the theft conviction was an exceptional sentence downward. Although the trial court did not designate this as an exceptional sentence in the judgment and sentence, it entered findings of fact in support of the exceptional sentence. The trial court also apparently warned Hoggatt that if he chose to appeal his conviction he would risk the State successfully appealing the exceptional sentence. See Report of Proceedings at 6-7, 11.[1]

Hoggatt appealed his conviction, and, as the trial court predicted, the State successfully appealed the exceptional sentence. In the unpublished portion of a part published opinion, we held that the trial court’s reasons did not support the exceptional sentence and remanded the case for resentencing. State v. Hoggatt, No. 25138-8-II, 108 Wn. App. 257
(Wash.Ct.App. Aug. 31, 2001) (unpublished) at 19-20.

In an initial appearance before the same court on remand, counsel advised the court that the case had been remanded for resentencing on the theft conviction. The following discussion ensued:

THE COURT: It looks like I gave you a chance and they said no. So now we’re going to have to re-sentence you, so.

MR. HOGGATT: What I don’t understand is, I’ve already served out the first sentence.[2]

THE COURT: Who appealed this?

MR. HOGGATT: The State.

THE COURT: The State, okay. All right. We’ll do it next week. You haven’t served out the first one because, if they’re consecutive —

[DEFENSE COUNSEL]: He did. Yeah. I mean there was also a motion to suppress issue that I believe he availed (inaudible).

THE COURT: First?

[DEFENSE COUNSEL]: I don’t know. I don’t remember right now, Your Honor.

THE COURT: I try to tell people not to do that.

[PROSECUTOR]: Both of his convictions are affirmed, and it’s just remanded for re-sentencing on [the theft conviction].

THE COURT: You didn’t appeal it yourself first, did you? Did you?

MR. HOGGATT: No.

THE COURT: Oh, good. All right. Next week we’ll talk about it.

RP at 6-7.

At the next hearing, Hoggatt’s counsel described the case history to the court. He informed the court that Hoggatt had initiated the appeal and that the State had cross-appealed. RP at 8.

Counsel then argued that the trial court could also justify the downward exceptional sentence under an incomplete defense of necessity, which was not a basis for the original exceptional sentence:

[DEFENSE COUNSEL]: And, one final thing. The other thing that has occurred to me is this: As we indicate — as I indicated at trial, we raised a defense of necessity. The Court found there was no basis for that to give an instruction on necessity, and it required, of course, that we prove the affirmative defense by a preponderance. The jury obviously did not find that we did so. However, that means that it is, in fact, an incomplete defense.

That was not one of the bases [sic] for the exceptional sentence down that was listed before it was not in the written findings.

We would suggest to the Court, the Court has the ability to give the sentence it originally gave for that reason, which was not originally listed.

RP at 10-11.

The court responded:

I would call — tell `em that if you appeal, he was nuts, because I wasn’t sure that would — would stand. He took his shot, so that’s his problem. Seventy-seven months on [the theft conviction], consecutive [with the possession conviction].

I wasn’t just whistling in the dark. Okay.

RP at 11.

The court then modified Hoggatt’s sentence, imposing a sentence of 77 months on the theft charge, which, when run concurrently with his sentence of 87 months on the possession charge, resulted in a total sentence of 164 months. CP 41; RP at 12. Hoggatt appeals. CP at 42.

Analysis
Hoggatt argues that the trial court’s `undue emphasis’ on his appeal and its failure to impose another exceptional sentence downward demonstrates that it was penalizing him for exercising his right to appeal. Br. of Appellant at 5. He also argues that the court failed to exercise its discretion when it did not grant the exceptional sentence because it refused to consider his proposed basis for re-imposing the exceptional sentence and focused solely on the fact he appealed his conviction. We disagree.

If a judge, motivated by vindictive retaliation, imposes an increased sentence after a defendant’s successful appeal, the court violates the defendant’s right to due process under the fourteenth amendment. State v. Franklin, 56 Wn. App. 915, 920, 786 P.2d 795 (1989), review denied, 114 Wn.2d 1004 (1990) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). There is a rebuttable presumption of vindictiveness from a more severe sentence. Franklin, 56 Wn. App. at 920.

But here, the remand order required the court to increase Hoggatt’s sentence to a standard range sentence unless it found substantial and compelling reasons for imposing a sentence below the standard range. Thus, the increase in Hoggatt’s sentence was the result of (1) this court holding that the factors the trial court originally relied on did not justify the exceptional sentence; and (2) the trial court’s refusal to impose an exceptional sentence downward. Accordingly, Hoggatt’s due process argument fails unless he can show that the court acted with vindictive retaliation when it refused to impose another exceptional sentence.

Although the record shows that the trial court commented on its earlier advise to Hoggatt about the risk of appealing and that it emphasized he should have followed this advice, there is nothing in the record suggesting this was the reason the court did not impose another exceptional sentence. On remand, Hoggatt proposed only one basis for an exceptional sentence: his partial defense of necessity. And although the record shows that the trial court did not analyze this argument on the record, neither does it show that the court ignored this argument because Hoggatt had failed to follow its advice. Furthermore, based on the record before us, it would not have been an abuse of discretion for the trial court to reject Hoggatt’s new argument.

The current record does not contain the transcripts or filings from the trial or original sentencing proceedings, but it appears from the facts as stated in our prior opinion that Hoggatt’s new basis for an exceptional sentence refers to the fact that Hoggatt had argued he initially took the firearm from his father when his father produced the gun in response to his request for money. See Hoggatt, No. 25138-8-II at 1-3. He also appears to have contended that his father had pointed the gun at him. See Hoggatt, No. 25138-8-II at 3. But, although he may have initially taken the gun in order to protect himself, the facts also show that Hoggatt left his father’s home with the gun and refused to return it unless his father gave him some money. See Hoggatt, No. 25138-8-II at 1-2. These facts do not support the conclusion that Hoggatt took and retained the gun out of necessity, and would not have been an appropriate basis for an exceptional sentence downward.

When taken in context with the trial court’s apparent warning during the initial sentencing proceedings, it is apparent that the trial court did not act vindictively when it imposed a standard range sentence. The record simply shows that the court commented on its original warning to Hoggatt and the results of Hoggatt ignoring this advice. As evidenced by the State’s actions and this court’s ruling, the trial court gave Hoggatt accurate advice. The fact Hoggatt then failed to convince the court that there was another basis for an exceptional sentence downward is not evidence of vindictiveness.

Furthermore, there is nothing in the record to establish that the trial court refused to consider Hoggatt’s argument for an exceptional sentence downward.[3] Having had this case before it previously, the court was aware of the facts, and Hoggatt’s argument was clear. At most, the trial court did not ask for a response from the State before evaluating Hoggatt’s argument, and this does not amount to a failure to exercise discretion.

Affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

HUNT, C.J. and QUINN-BRINTNALL, A.C.J., concur.