State v. Clark

STATE OF WASHINGTON, Appellant, v. JOHN THOMAS EDWARD CLARK, Respondent.

No. 38744-5-III

Court of Appeals of Washington, Division 3

February 21, 2023

UNPUBLISHED OPINION

Pennell, J.

The State of Washington appeals a below-guideline sentence imposed on John Thomas Edward Clark after he pleaded guilty to a felony no-contact order violation. We agree with the State that the sentencing court based its sentencing decision, at least in part, on factors that are impermissible under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We therefore reverse the sentence and remand for resentencing.

FACTS

John Thomas Edward Clark was charged with one count of felony violation of a no-contact order (domestic violence). According to the affidavit of probable cause, Mr. Clark repeatedly violated an order of protection taken out by his ex-wife. The affidavit stated Mr. Clark attempted to contact his ex-wife "multiple times" through Facebook Messenger. Clerk's Papers (CP) at 1. Mr. Clark also attempted to contact his ex-wife by sending "multiple" communications through Facebook Messenger to his ex-wife's mother. CP at 2. The Facebook messages were allegedly not threatening or intimidating and most recently they consisted of expressions of apology. Mr. Clark's case was charged as a felony because he had more than two prior convictions for violating a no-contact order.

Mr Clark apparently was on pretrial release throughout the pendency of his case. A little over one year after the filing of charges, Mr. Clark pleaded guilty pursuant to a plea agreement. According to the agreement, the parties had an "[a]greed recommendation" for a prison-based Drug Offender Sentencing Alternative (DOSA). CP at 8. The DOSA recommendation would entail 30 months of treatment in confinement followed by 30 months of community custody. This was the minimum possible sentence under the SRA absent an exceptional sentence downward.

Mr Clark's plea agreement referenced the affidavit of probable cause as the factual basis for his plea. According to an understanding of criminal history signed by the parties, Mr. Clark had four prior convictions for violation of a no-contact order. All four convictions were sentenced on the same day, which was approximately six months before the current offense conduct.

After Mr. Clark's entry of the plea, the case proceeded directly to sentencing. The State requested the sentencing court impose the agreed recommended sentence. Mr. Clark's ex-wife was present in the courtroom with a victim advocate but opted not to present a statement to the court.

Defense counsel also offered the following comments and opinions:

I know I stood in front of you with many clients and told you they're a joy to work with and easy to work, but I've never meant that more when I say that about Mr. Clark.

. . . The day I met Mr. Clark probably about eight or nine months ago he told me he wanted to take responsibility for his actions, told me he was ready to plead guilty, but the offer on the table was this; it was prison DOSA where he would have to derail the past two years of his rehabilitation, his getting sober, getting his life on track to go to prison for 20 months at best with good time. And so for the past nine months I've been working with the State in attempt to find a resolution that would allow Mr. Clark to potentially not spend nearly two years in custody followed by DOC [Department of Corrections community custody].

DOC isn't his concern. He knows he'll be able to be compliant with that. It's really going to prison, taking two years off work, child support payments, all of those things and having to kind [of] get back out of custody and start his life over again for however many-th (sic) time.

Mr. Clark and I met last night to go over all the plea paperwork and he told me, you know, I've picked my life up before; I can do it again. That's heartbreaking for me to hear because he wants to take responsibility for his actions, he knows that he violated this no contact order back in November of 2020, but he's gotten sober, he's gotten clean. Since November of 2020 as far as I'm aware there haven't been any allegations of violations of a no-contact order. I'm sure the State would have informed me if there were. So he's been good, and he's done what he needs to do.

It's unfortunate that the [SRA] is structured the way it is. The law is the law and no-contact orders are such a procedural charge that it's easy for the State to prove at trial. Mr. Clark didn't want to put the community through that; he didn't want to put his family and friends through that, or the victim through that. So he's taking responsibility and he's ready to enter his guilty plea.

I think the only way and I told Mr. Clark this, the only way I would have been able to help him is to go back in time, never leave the prosecutor's office, be the assigned DPA [deputy prosecuting attorney] on this case, and have a little empathy for the journey that he's gone on, and the changes that he's made in his life. This is a hard one for me, Your Honor, to sit here and have Mr. Clark booked into custody today knowing that for the next two years he's going to have to sit still, and as an addict he's going to have to be really, really structured when he gets out of custody and be very focused. He knows he can do it; I know he can do it, but it's hard to sit here and know that transport is coming to take him away for two years.

Rep. of Proc. (RP) (Jan. 13, 2022) at 16-18.

Mr. Clark then presented his statement to the sentencing court, acknowledging substance abuse issues and expressing remorse.

After hearing from counsel and Mr. Clark, the court asked Mr. Clark how it could be sure Mr. Clark would not again violate a no-contact order given his history of noncompliance. Mr. Clark answered that he was currently sober and did not want to cause further problems for his family. The sentencing court then asked defense counsel whether it had the ability to require additional community custody if it were to impose an exceptional downward sentence. Defense counsel responded there was a mandatory 12-month term.

The sentencing court then requested a sidebar with counsel and the victim advocate. Due to technical issues, the sidebar was not recorded but in the court's findings of fact and conclusions of law, it described the conversation as follows:

4. While considering what sentence to impose, the [sentencing Court] called for a sidebar with defense counsel, the State, and the victims' advocate. At the commencement of the sentencing hearing, it was initially reported to the sentencing Court, by the assigned DPA, that the victim did not intend to provide a statement but was present and attending the hearing with her assigned victim advocate present. Following the allocution, the sentencing Court considered the appropriateness of imposing an exceptional sentence below the standard range and asked the victims' advocate to speak with the victim in this matter (who was also present) privately to discuss whether she would be comfortable with an exceptional sentence below the standard range. The Court wished to provide victim an opportunity for input and to put her on notice that the Court was considering imposing a sentence below the standard range and below the 30 month confinement followed by 30 month community custody Prison DOSA recommendation. The sentencing [Court] specifically and affirmatively indicated to the victims' advocate that the victim was not required to answer the question if she was not comfortable. The victim's advocate consulted with the victim and subsequently relayed to the Court that the victim felt torn because the defendant seemed sincere, but she still wanted him to be held accountable for his actions.

CP at 33. In the court's oral statements during sentencing it noted that the victim "was also concerned about having some harassment from the family and was feeling very torn." RP (Jan. 13, 2022) at 25.^[1] Immediately following the sidebar, defense counsel noted that the most recent of Mr. Clark's violations were communications expressing apology. The State then expressed it had "grave concerns" about the nature of the proceeding, explaining it was "quite obvious" that defense counsel was operating in bad faith to undermine the agreement. Id. at 22. After the sentencing court orally summarized the sidebar for the record, the State specifically took issue with defense counsel's comment suggesting the State did not have empathy and asserting defense counsel would have handled the case differently if they were in the role of the prosecutor. Despite the State's concerns, it nevertheless stated it was "not going to deviate from the agreement and try to make this a contested sentencing like defense did." Id. at 26.

The court imposed an exceptional downward sentence of 6 months' confinement with 12 months' community custody, and it issued a 5-year no-contact order. After the hearing concluded, the parties and the court went back on the record to allow the victim's advocate to relay the victim's response to the exceptional sentence. The advocate explained the victim felt torn between wanting Mr. Clark to be held accountable for his actions and believing he was making progress toward rehabilitation. However, the advocate stated that when the victim heard Mr. Clark was sentenced to only 6 months of incarceration, "she was very shocked, she was angry, she was upset" because she felt Mr. Clark was not being held accountable for his conduct. Id. at 37. The State also noted that the victim was not asked how she felt about the 6-month sentence, simply how she felt about an unspecified reduction from the recommendation of 30 months.

The sentencing court entered written...