stating a defendant is automatically entitled to a new sentencing hearing when his right to allocution is violated
How later courts described this case
- stating a defendant is automatically entitled to a new sentencing hearing when his right to allocution is violated
- once the sentence has been announced, the defendant is arguing from a disadvantaged position and resentencing before a new judge is required
- no breach of plea agreement when testimony of witness called by State was cumulative of written report and corrected error in written report
- trial court does not discharge its mandatory duty to allow allocution by shifting to the defendant the burden of requesting it
Written by the judges who cited it.
The opinion
Sweeney, J.
(dissenting) — The current right of allocu *862 tion is spelled out in the Sentencing Reform Act of 1981: "Before imposing a sentence upon a defendant, the court shall conduct a sentencing hearing. . . . The court shall . . . allow arguments from the . . . offender . . . .” RCW 9.94A.110. Whether Michael Crider was denied that right to allocution is questionable. But even if he was, any error was harmless. I therefore respectfully dissent.
Before he sentenced Mr. Crider, the judge read a lengthy letter from him, addressed specifically to the judge, outlining his troubled childhood, problems in his relationships with family members and with alcohol, and his plans for the future, which included more education. Immediately following the sentencing hearing, Mr. Crider filed a notice of appeal assigning error to the court’s failure to afford an opportunity for allocution. Given the timing and grounds for the appeal, Mr. Crider apparently knew of his right of allocution but chose to remain silent. The court then offered to let him speak. His lawyer protested that the court’s gesture was an idle one. Mr. Crider responded nonetheless: "All I’d like to say is I’m sorry for hurting everybody that I’ve hurt in my whole lifetime, the girls especially, my parents, and everybody that’s been around me. About my school, I’m really excited about that, and that treatment program, I’m excited about that. Again, I’m real sorry for what I did to those girls, and all that.”
To conclude that Mr. Crider was denied his right to al-locution and further that the denial was prejudicial places form above substance. It is the kind of technical argument the doctrine of harmless error was developed to eliminate. Chapman v. California, 386 U.S. 18, 22 , 87 S. Ct. 824 , 17 L. Ed. 2d 705 (1967) (the purpose of the harmless error rule is to prevent setting aside convictions for small errors or defects that have little, if any, likelihood of changing the result of the trial); State v. Wanrow, 88 Wn.2d 221, 237 , 559 P.2d 548 (1977) (a harmless error is one which is trivial, formal or merely academic and which affects in no way the outcome of the case). Even basic constitutional rights are subject to the harmless error analysis. See, e.g., *863 State v. Aumick, 126 Wn.2d 422, 430 , 894 P.2d 1325 (1995) (failure to instruct jury as to every element of a crime); State v. Lane, 125 Wn.2d 825, 839 , 889 P.2d 929 (1995) (trial judge’s comment on the evidence); State v. Buss, 76 Wn. App. 780, 789 , 887 P.2d 920 (1995) (denial of right to cross-examine witness).
It is apparent from his attorney’s comments following sentencing that Mr. Crider was aware of his right of al-locution; he simply was not informed of that right by the court. When provided with an opportunity to address the court, he with "halting eloquence” did so. Green v. United States, 365 U.S. 301, 304 , 81 S. Ct. 653 , 5 L. Ed. 2d 670 (1961) ("The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”). The trial judge had also reviewed the letter written by Mr. Crider himself, which set out, in his own words, mitigating factors for his crime, including his troubled family history and his earnest commitment to work at rehabilitation. Although the judgment had already been signed, it had not been entered and the judge could have withdrawn it after Mr. Crider’s statement. See State v. Dana, 59 Wn. App. 667, 670 , 800 P.2d 836 (1990) (trial court retains jurisdiction over the sentence until it is entered).
Remand here is, in my judgment, an unfortunate waste of judicial resources. This court can and has refused to remand for resentencing where announced grounds for an exceptional sentence are invalidated. See, e.g., State v. Baucham, 76 Wn. App. 749, 753 , 887 P.2d 909 (1995) (exceptional sentence affirmed even when all but one of the trial court’s reasons for the sentence were invalidated); State v. Negrete, 72 Wn. App. 62, 70-71 , 863 P.2d 137 (1993) (no remand for sentencing even though two of three reasons for imposing exceptional sentence were invalid), review denied, 123 Wn.2d 1030 (1994). It seems to me that the situation here is directly parallel.
I would conclude that any technical denial of Mr. Crid *864 er’s right of allocution was harmless and affirm the sentence of the trial court.