STATE v. WARDERS, 27538-4-II (Wash.App. 9-27-2002)

No. 27538-4-II.The Court of Appeals of Washington, Division Two.
Filed: September 27, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 011010982, Hon. Terry D. Sebring, May 23, 2001, Judgment or order under review.

Counsel for Appellant(s), Stephen J. Oelrich, Law Offices of Stephen J. Oelrich, 14706 Union Ave SW, Lakewood, WA 98498.

Counsel for Respondent(s), Kathleen Proctor, Pierce Co. Dep. Pros. Atty., Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.

CARROLL C. BRIDGEWATER, J.

Daniel Dale Warders appeals his convictions for domestic violence-second degree assault and violation of a protection order. We affirm.

After Warders’ guilty pleas, he and the State made a joint sentencing recommendation of five months’ incarceration for the assault and 89 days for violating the protection order, to run concurrently. Given Warders’ offender score of zero, the standard ranges were three to nine months and zero to twelve months respectively.

At sentencing, the victim, Warders’ estranged wife, produced a receipt that she claimed was for the purchase of a firearm and bore Warders’ signature. The sentencing court asked Warders about the receipt, the signature, the firearm, and whether he possessed weapons. Warders denied knowing about the receipt and the firearm and claimed that he possessed no weapons. Warders also denied that his signature was on the receipt, but he admitted that it was a `good forgery.’ Report of Proceedings (RP) at 13.

The victim further claimed that Warders had bragged to their friends that he had an AK-47 assault rifle, which he would use on her if she left him. Apparently, the receipt was for such a firearm.

Warders argued that the receipt did not state that it was for a firearm, but his only objection (hearsay) concerned the victim’s claim that he had threatened her.[1] The State was concerned that the victim feared for her life.

The superior court sentenced Warders to the high end of the standard range, 9 months for the assault and 12 months for violating the protection order, to run consecutively. After passing sentence, the court stated:

[Mr. Warders], I’ll indicate that I am imposing a sentence within the standard range on the felony and . . . the gross misdemeanor. . . . [M]y concern is that the victim’s fear of retaliation through use of a weapon is real. So, that’s why I’m doing what I’m doing if that wasn’t already clear to you.
Your denial of purchase of the weapon is not credible with me. . . . It looks like a receipt for a weapon to me, and your total denial of it doesn’t give me any alternate explanation. It’s not credible.

RP at 17-18.

Warders contends that the sentencing court abused its discretion by considering a disputed material fact: the firearm purchase evidenced by the receipt. Accordingly, he seeks a remand for resentencing after an evidentiary hearing.

Generally, the Sentencing Reform Act precludes a defendant from appealing a standard range sentence. RCW 9.94A.585(1) (`A sentence within the standard sentence range for the offense shall not be appealed.’) Former RCW 9.94A.210 (2000). The only exception is a challenge that the sentencing court did not follow the applicable procedural requirements, RCW 9.94A.500 (former RCW 9.94A.110 (2000)) and RCW 9.94A.530 (former RCW 9.94A.370 (2000)). State v. Mail, 121 Wn.2d 707, 713, 854 P.2d 1042
(1993); State v. Ammons, 105 Wn.2d 175, 182-83, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986).

Warders relies on RCW 9.94A.530(2) and asserts that he is entitled to an evidentiary hearing because the trial court considered a disputed material fact in passing sentence, the purchase of the gun as shown by the receipt. His argument is meritless and fails on several, independent grounds.

First, the sentencing court did not rely on the alleged gun possession, but rather the victim’s fear of retaliation. Thus, it did not rely on a disputed material fact in passing sentence.

Second, even assuming that the court considered the receipt in passing sentence, Warders failed to object and properly dispute any material facts. (Defense counsel’s sole objection, hearsay, concerned the victim’s claim that Warders had threatened her.) To challenge information at sentencing, a defendant must make a `timely and specific’ objection that goes to its `veracity[,]’ not just its `use.’ Mail, 121 Wn.2d at 712; accord, State v. Garza, 123 Wn.2d 885, 890, 872 P.2d 1087 (1994). Because Warders failed to object, the receipt was deemed acknowledged, and the sentencing court could properly consider it. RCW 9.94A.530(2); State v. Handley, 115 Wn.2d 275, 283, 796 P.2d 1266 (1990) (citing former RCW 9.94A.370(2)). As such, the sentencing court followed the correct procedures in imposing a standard range, and RCW 9.94A.585(1) bars this appeal.

Third, even if Warders properly objected and had the court proceeded as it did, the error would have been harmless. The court gave Warders ample opportunity to address the court and give his version of the events. As we held in State v. Olive, 47 Wn. App. 147, 151, 734 P.2d 36, review denied, 109 Wn.2d 1017 (1987), a hearing would have been only a formality.

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.

WE CONCUR: SEINFELD, J., HUNT, C.J.