State v. Graciano

Chambers, J. *

¶44 (concurring in dissent) — I agree with much in the well reasoned dissent. I write separately to observe that what we actually do on review, and what we say we are doing, often part company. We often state a standard of review and effectively ignore or avoid it, often for the very good reason that it does not well fit the posture of the case or the issue entrusted to us for review.

¶45 Simply put, the amount of deference appellate courts properly give trial courts varies directly with the amount of discretion the trial court properly has. When the determination of the particular issue rests upon the credibility of the witnesses or the weight of the evidence, the trial court has vast discretion and the appellate courts properly show considerable deference. But when the facts are uncontested or when determination of the particular issue turns on the meaning of a statute, a constitution, or a *552 principle of common law, the trial court has no discretion and we properly show no deference. We sometimes describe both as abuse of discretion review (one a very special type of abuse of discretion review), which has bred considerable confusion in the bench and bar. In my experience, whether the trial court has discretion or not is determined on a sliding scale and the scope of our review slides accordingly. But as this standard resists pithy encapsulation, we often slide past offering one.

¶46 As we recently observed:

Appellate courts give deference to trial courts on a sliding scale based on how much assessment of credibility is required; the less the outcome depends on credibility, the less deference is given to the trial court. Washington has thus applied a de novo standard in the context of a purely written record where the trial court made no determination of witness credibility. See Smith[ v. Skagit County], 75 Wn.2d [715,] 719[, 453 P.2d 832 (1969)]. However, substantial evidence is more appropriate, even if the credibility of witnesses is not specifically at issue, in cases such as this where the trial court reviewed an enormous amount of documentary evidence, weighed that evidence, resolved inevitable evidentiary conflicts and discrepancies, and issued statutorily mandated written findings. See [In re Marriage of] Rideout, 150 Wn.2d [337,] 351[, 77 P.3d 1174 (2003)]; Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 , 105 S. Ct. 1504 , 84 L. Ed. 2d 518 (1985) (deference rationale not limited to credibility determinations but also grounded in fact-finding expertise and conservation of judicial resources).

Dolan v. King County, 172 Wn.2d 299, 311 , 258 P.3d 20 (2011); see also Dreiling v. Jain, 151 Wn.2d 900, 908 , 93 P.3d 861 (2004) (citing Rivett v. City of Tacoma, 123 Wn.2d 573, 578 , 870 P.2d 299 (1994)).

¶47 That said, I believe the Court of Appeals panel below showed wisdom in adopting Judge Sweeney’s well reasoned approach in State v. Torngren, 147 Wn. App. 556 , 196 P.3d 742 (2008). Whether two crimes constitute the same criminal conduct for purposes of calculating the offender score is *553 determined by a test established by the legislature by statute. “ ‘Same criminal conduct/ as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.” RCW 9.94A.589(l)(a). As Judge Sweeney noted, the test is an objective one and, when no fact-finding is required, leaves no room for judicial discretion. Torngren, 147 Wn. App. at 563 . Where there is no room for judicial discretion, there is no reason to review for its abuse. Appellate courts are in just as good a position to apply objective standards to uncontroverted facts as trial courts. Limiting our review to abuse of discretion is convenient for the appellate court because it requires a less searching review, but in my experience, where we find an obvious error, we call it an abuse of discretion. I have come to conclude that where the test is objective and the facts are uncontroverted, there is no reason for appellate courts not to do a thorough de novo review. This is especially true of issues of same criminal conduct that may have a profound effect on the length of a sentence.

¶48 Finally, I am startled that the majority today announces, in a case that did not present the question, the entirely new rule that the defendant bears the burden of showing that current offenses are not the same criminal conduct for scoring purposes. Majority at 538-39. We granted review of only one of the four issues presented: whether the proper standard of review for a trial court’s determination of same criminal conduct was de novo or abuse of discretion. See Order Granting Review (Jan. 5, 2012). The parties did not ask us, and we did not grant review, to decide the allocation of burdens at sentencing. As the dissent points out, the parties agree, as do I, that the State bears that burden. Dissent at 541-43. The majority’s pronouncement on this issue is, in my view, wrong and dicta, and likely violates due process principles.

¶49 The majority gives insufficient weight to the fact that every time we have considered who has the burden of *554 establishing the appropriate sentence, we have placed it on the State. See, e.g., State v. Saenz, 175 Wn.2d 167, 172, 283 P.3d 1094 (2012); State v. Knippling, 166 Wn.2d 93, 98, 100-01 , 206 P.3d 332 (2009); State v. Bergstrom, 162 Wn.2d 87, 93 , 169 P.3d 816 (2007); In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876 , 123 P.3d 456 (2005); State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002); State v. Ford, 137 Wn.2d 472, 480-81 , 973 P.2d 452 (1999); State v. Ammons, 105 Wn.2d 175, 183 , 713 P.2d 719 , 718 P.2d 796 (1986); see also State v. Dolen, 83 Wn. App. 361, 365 , 921 P.2d 590 (1996) (explicitly putting the burden of establishing whether two crimes are the same criminal conduct on the State). None of the cases cited by the majority hold otherwise. The only arguable exception to the general rule that I could find is that the State does not have the burden of proving the lawfulness of prior convictions it seeks to use as part of the defendant’s criminal history. State v. Irish, 173 Wn.2d 787, 789-90 , 272 P.3d 207 (2012) (citing Ammons, 105 Wn.2d at 187-88 ). But this follows from our overriding respect for settled judgments, In re Pers. Restraint of Grantham, 168 Wn.2d 204, 211 , 227 P.3d 285 (2010), a principle not implicated in the determination of whether two current convictions are for the same criminal conduct.

¶50 Further, as we recently affirmed, there are due process implications at stake in sentencing that can be satisfied only by requiring the State to prove its case. See State v. Hunley, 175 Wn.2d 901 , 287 P.3d 584 (2012). Placing the burden on the defendant is inconsistent with the overriding general principle that it is the State’s job to prove the case and establish the appropriate sentence. I have deep concerns that placing the burden on the defendant to show same course of conduct will not satisfy a due process challenge. I would affirm.

¶51 I respectfully dissent.

Reconsideration denied April 12, 2013.

Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).