State v. Bailey

1

STATE OF WASHINGTON, Respondent, v. STEPHEN ANTHONY BAILEY, Appellant.

No. 39348-8-III

Court of Appeals of Washington, Division 3

August 27, 2024

UNPUBLISHED OPINION

Pennell, J.

Stephen Bailey appeals his 288-month sentence that was imposed during a 2022 Blake^[1] resentencing hearing. We affirm his sentence, but remand for the limited purposes of striking the $500 crime victim penalty assessment (VPA) from the judgment and sentence, and correcting two scrivener's errors.

BACKGROUND

In 2008, a jury convicted Mr. Bailey of first degree assault and witness intimidation, both with findings of domestic violence. At his original sentencing hearing, Mr. Bailey was deemed a persistent offender and received a life sentence. This sentence was reversed on appeal and the case was remanded for resentencing. State v. Bailey, 179 Wn.App. 433, 335 P.3d 942 (2014). At the 2014 resentencing hearing, Mr. Bailey's sentencing range was calculated as 240 to 318 months. Mr. Bailey's offender score included a 2002 conviction for possession of a controlled substance. The resentencing court imposed a total sentence of 300 months of incarceration.

While Mr. Bailey was serving his sentence, the Washington Supreme Court decided State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). The Blake decision held that Washington's statute criminalizing simple possession of controlled substances was void because it violated the due process clauses of the state and federal constitutions. Blake had a retroactive effect. One of the results of Blake was that defendants serving criminal sentences that had been inflated based on prior convictions for possession of a controlled substance were entitled to resentencing. Mr. Bailey's case was one of many impacted by Blake. As a result, he was scheduled for a second resentencing hearing in October 2022.

At the time of the 2022 resentencing hearing, neither the original 2008 sentencing judge nor the 2014 resentencing judge were available to handle Mr. Bailey's case. As a result, the Blake resentencing was handled by a judicial officer who was new to the case.

Mr Bailey appeared for his resentencing remotely, via video technology. At the onset of the hearing, Mr. Bailey's attorney noted Mr. Bailey was housed at the local jail and wanted to be present in the courtroom for his hearing. The attorney requested Mr. Bailey be brought to court, noting Mr Bailey had a "list of notes" he wanted counsel to review during the hearing. 1 Rep. of Proc. (RP) (Oct. 26 2022) at 18. The State objected to Mr. Bailey's request noting it did not see the necessity of Mr. Bailey being brought into the courtroom. The court commented Mr. Bailey could participate in the hearing through the video technology. It denied Mr. Bailey's request to be brought into the courtroom, explaining it had "security concerns about Mr. Bailey" because there was "a courtroom full of people and not enough officers." Id. Mr. Bailey's attorney responded, "Understood." Id. The attorney then advised Mr. Bailey that he was going to stay at the jail during the proceeding, but the attorney would be able to take a break for a private consultation with Mr. Bailey if necessary.

The court went forward with resentencing. The State reviewed the case's procedural history and pointed out Mr. Bailey's sentencing range had not changed as a result of Blake-his offender score remained maxed out and his sentencing range was still 240 to 318 months. The State requested the court reimpose the prior sentence of 300 months.

During Mr. Bailey's presentation, defense counsel elicited brief testimony from the victim. In response to counsel's questions, the victim stated she was not afraid of Mr. Bailey, she loved him, and she did not think he needed to be incarcerated for as long as the State had requested because he was "getting domestic violence classes." Id. at 25. While the victim was physically present in the courtroom, most of the victim's statements appear to not have been "picked up on the record" and the court said it could not hear "a word" the victim was saying. Id. The court asked defense counsel for a summary. Counsel stated, the victim "still has strong, good feelings for Stephen Bailey and she's talking about hoping the Court-she would rather he was out today is what she was saying. She is not in fear of [Mr. Bailey]." Id. Defense counsel added the victim had discussed "domestic violence classes and other things [Mr. Bailey] was doing." Id. at 26.

Defense counsel asked for a low-end sentence,^[2] noting Mr. Bailey had certificates of completion for domestic violence and other classes. Counsel also represented that Mr. Bailey wanted to be done with gangs, but the separation process was difficult while he remained in custody. Defense counsel also asked the court to strike all nonmandatory legal financial obligations.

After hearing from defense counsel, the State introduced testimony from a detective who had worked on Mr. Bailey's case. The detective recalled there had been a lot of "manipulation" in the relationship between Mr. Bailey and the victim. Id. at 32. The detective had listened to hundreds of jail calls between Mr. Bailey and the victim as part of the obstruction investigation. According to the detective, there was a lot of "mental abuse" between Mr. Bailey and the victim. Id. at 33.

The State also made some evidentiary proffers, including information from the Department of Corrections (DOC) that Mr. Bailey had received an infraction in May 2022 for instructing an out-of-custody individual on how to introduce contraband into the prison. The State's attorney also proffered that, during his work on Mr. Bailey's criminal trial, he recalled reviewing a phone call between Mr. Bailey and the victim during which Mr. Bailey told the victim "to prostitute herself" for bail money. Id. at 34-35.

Mr. Bailey then addressed the court. He admitted to hurting the victim and apologized for his actions. But he also claimed he was actually innocent of his assault conviction because he had never actually choked the victim. Mr. Bailey discussed the challenges he experienced in his youth, his efforts to distance himself from gangs, and the progress he had made in custody by working and taking domestic violence awareness classes. Mr. Bailey assured the court he was not the same person he was at the time of his offense conduct.

After hearing from Mr. Bailey and allowing defense counsel time to review the State's evidence, the court proceeded to imposition of sentence. The court noted that Mr. Bailey's sentencing range was 240 to 318 months and that it was the court's practice to start at the middle of the range. The court recognized it was new to Mr. Bailey's case and stressed its sentencing decision would be "based upon the evidence that's been presented to me today." Id. at 53. The court expressed skepticism that Mr. Bailey had changed his manipulative ways, given: (1) the DOC infraction received only five months prior to resentencing for attempting to influence an individual to move contraband into the prison, and (2) the manipulating and controlling nature of the hundreds of prison calls from Mr. Bailey to the victim and the fact that she was in court that day in support of Mr. Bailey. Nevertheless, the court decided to remove 12 months from Mr. Bailey's prior sentence based on Blake. The court also decided to shorten the lifetime no-contact order between Mr. Bailey and the victim and to eliminate unnecessary legal financial obligations. The final sentence imposed by the court included a total term of 288 months in prison, and a 25-year no-contact order. The only financial obligation imposed by the court was the then-mandatory $500 VPA.

After the court pronounced sentence, Mr. Bailey stated he had some objections he wanted to place on the record. During this process, Mr. Bailey commented that he wished he could have "had the opportunity to stand next to [his] attorney" during the sentencing hearing. Id. at 63-64. The court told Mr. Bailey he had been advised his attorney could come back to speak with him if necessary. Mr. Bailey then asked for a pause in the proceedings to confer with counsel. The court granted this request. When the proceedings resumed, defense counsel placed Mr. Bailey's legal objections on the record.^[3] Counsel also stated the victim "was disappointed that she didn't get to speak, but it seemed clear to [counsel] that was not gonna bear fruit." Id. at 66. Thus, counsel preserved an objection to the victim's "absence from further participation." Id.

ANALYSIS

Mr Bailey appeals the court's resentencing decision, raising five assignments of error: (1) the court failed to conduct a de novo resentencing, (2) the court violated Mr. Bailey's "constitutional right to be physically present" at his resentencing hearing by not allowing him to appear in person, (3) the court violated the victim's constitutional right to speak at sentencing, (4) new legislation requires striking the VPA, and (5) the judgment and sentence form contains scrivener's errors. Appellant's Opening Br. at 2.

We address each claim in turn.

1. De novo sentencing hearing

Mr. Bailey argues the trial court failed to conduct a de novo sentencing hearing, as required by State v. Dunbar, 27 Wn.App. 2d 238, 532 P.3d 652 (2023). We disagree.

In Dunbar, we held that when a trial court conducts a resentencing under Blake, the hearing must be de novo, not merely a reimposition of the prior sentence. At resentencing, the court may consider evidence of "any matters relevant to sentencing, even those that may not have been raised at the first sentencing hearing." Id. at 248.

The record shows Mr. Bailey received a full, de novo resentencing hearing. Unlike Dunbar, the court here did...