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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                              FILED
                                                                         APRIL 17, 2012
                                                                   In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29598-2-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
RONALD LYNDSEY BUTLER,                          )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  The State may not introduce new evidence of prior criminal history 

at a later sentencing proceeding if the defendant objected to the record of his criminal 

history at the original sentencing proceeding.  Here, the State offered evidence of the 

defendant's prior criminal history at his original sentencing proceeding but the judgments

and sentences never made it into the clerk's file.  The defendant pro se objected that some 

of his earlier convictions had washed out.  His lawyer did not object.  In a subsequent 

sentencing proceeding, the court allowed the State to file the necessary judgments and 

sentences after concluding that those documents had been considered but were missing 

from the clerk's file.  We conclude that the court had discretionary authority to do that  

No. 29598-2-III
State v. Butler

and we affirm the sentence.  

                                            FACTS

       A Franklin County Superior Court judge found Ronald Butler guilty of two counts 

of unlawful delivery of a controlled substance, methamphetamine, after a 2008 bench 

trial.  At the sentencing hearing, the prosecutor said that he could file documents 

supporting the proposed offender score of nine: "I have reviewed the defendant's criminal 

history and for purposes of sentencing I've obtained certified copies of the Judgment and 

Sentence for all those convictions previously.  I previously provided those to counsel.  I 

am prepared to file those with the Court today."  Report of Proceedings (RP) (Aug. 29, 

2008) at 6. Mr. Butler argued that the offender score was incorrect: "The criminal history 

is not quite right.  I do have extensive history and have been charged with all these 

charges, but there was charges that washed through the period of time.  The first two, I 

believe, were supposed to be washed." RP (Aug. 29, 2008) at 9. The court concluded 

that Mr. Butler had an offender score of nine.  

       Mr. Butler moved to modify his sentence.  He argued that the trial court 

incorrectly calculated his offender score because two of his prior convictions had 

"washed out."  Clerk's Papers at 108. The motion was transferred to the Court of 

Appeals and treated as a personal restraint petition.  The State conceded that the case 

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State v. Butler

should be remanded for resentencing.  At the resentencing hearing, the prosecutor 

explained why he agreed that another sentencing hearing was necessary:

       I asked the clerk to review the court's file because I recalled filing a number 
       of certified copies of judgment and sentences in support of the defendant's 
       offender score, and I wanted to address that with the [C]ourt of [A]ppeals 
       and indicate that the State had established the offender score despite Mr. 
       Butler's objection.
              My review of the court's file, based on my conversation with the 
       clerk, was that there were no judgment and sentences, certified judgment 
       and sentences in the court's file.  So I went back and reviewed the transcript 
       of the sentencing hearing with your Honor, and review of that indicates to 
       me that I filed a number of certified copies with the court which are no 
       longer available.  
              So I indicated to the [C]ourt of [A]ppeals that the evidence wasn't in 
       the court file, and that it should be [remanded] for a sentencing hearing.  I 
       am simply requesting the opportunity to -- I've reordered those judgment 
       and sentences.  I am prepared to file those with the court today.  They are 
       the same ones that I filed last time.  They are all reflected in the defendant's 
       judgment and sentence.  

RP (Dec. 14, 2010) at 2-3. The State also conceded that the offender score should be 

eight rather than nine.  Mr. Butler objected.  He argued that the State should be prohibited 

from submitting new evidence because Mr. Butler objected to his offender score at the 

initial sentencing hearing and because the clerk's file suggested that the State never 

submitted evidence of Mr. Butler's criminal history.  The court allowed the State to file 

copies:

       I certainly recall the State handing forward the copies of the previous 
       judgment and sentences.  Why they're not in the court file I don't know
       . . . .  So, I will accept these certified copies of judgment and sentences.  I'll 

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No. 29598-2-III
State v. Butler

       ask them to be filed in the court file.

RP (Dec. 14, 2010) at 6. The State then filed certified copies of judgments and sentences 

that documented Mr. Butler's criminal history.  The sentencing court indicated it would 

sign "an order which would amend the offender score to eight as opposed to nine," but 

would not amend the judgment and sentence.  RP (Dec. 14, 2010) at 8.  

                                        DISCUSSION

       Mr. Butler argues, as he did in the sentencing court, that the State should not have 

been allowed to introduce evidence of his prior convictions at his second sentencing 

hearing because he objected to the court's calculation of his prior criminal history at the 

first sentencing and these documents were not part of the record. The State responds that 

it is not introducing new evidence because this prior criminal history was before the court 

in the earlier proceeding; the documents simply never made it into the clerk's file. 

Whether evidence was before the court in the earlier sentencing hearing is a factual

determination. And like other factual determinations, we defer to the trial court's 

decision.  See State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d 866 (2000) (citing State v. 

Noltie, 116 Wn.2d 831, 839-40, 809 P.2d 190 (1991); Ottis v. Stevenson-Carson Sch. 

Dist. No. 303, 61 Wn. App. 747, 755, 812 P.2d 133 (1991)).  

       The State, of course, must prove the prior convictions.  State v. Bergstrom, 162 

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State v. Butler

Wn.2d 87, 93, 169 P.3d 816 (2007).  In a remand situation like this, there are three 

possible outcomes.  Id. First, if the State alleged prior convictions and the defense failed

to specifically object at an initial sentencing hearing, the State can present new evidence 

of convictions on remand.  Id. Second, if the defense specifically objected and the State 

failed to produce evidence of prior convictions, the State cannot present new evidence on 

remand.  Id. at 93-94 (citing State v. Cadwallader, 155 Wn.2d 867, 877-78, 123 P.3d 456 

(2005); State v. Ford, 137 Wn.2d 472, 485, 973 P.2d 452 (1999)).  Third, if the defense 

agreed with the State's allegations of prior convictions, the defendant has waived his right 

to challenge the criminal history on appeal.  Id. at 94. 

       Mr. Butler assumes that his pro se objection to his offender score was sufficient to 

require that the State produce some evidence of the offender score.  And he contends that, 

because the clerk's file contains no such evidence, the court should not have permitted 

the State to submit "new" evidence on remand.  Whether Mr. Butler's pro se objection 

was sufficient to invoke this rule from Bergstrom is questionable, especially since he was 

represented by competent counsel who expressed no concern.   See id. at 97.  But,

ultimately, it is not determinative of the outcome here. 

       The record here supports the conclusion that the documents were presented, were

considered, and simply did not make it into the clerk of the court's file.  The court found 

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No. 29598-2-III
State v. Butler

that the State had in fact filed certified copies of Mr. Butler's judgments and sentences at 

the first sentencing hearing.  RP (Dec. 14, 2010) at 6. The judge presiding over these 

sentencing proceedings simply did not know why the copies were not in the clerk's file.

       The court intended to admit the exhibits into evidence at the initial hearing, yet 

those exhibits were not part of the record.  So, accepting the exhibits at the second 

hearing essentially "rectif[ied] the record as to acts which did occur."  State v. Smissaert, 

103 Wn.2d 636, 641, 694 P.2d 654 (1985).  And the error corrected was "clerical"

because accepting the exhibits merely embodied the court's prior intent to accept those 

exhibits. State v. Ryan, 146 Wash. 114, 116, 261 P. 775 (1927).  Accepting the exhibits 

at the December 2010 hearing was a proper exercise of the court's discretionary 

authority. State v. Jones, 67 Wn.2d 506, 513, 408 P.2d 247 (1965).  It was not obligated 

to resentence Mr. Butler with an offender score of zero.  

                   STATEMENT OF ADDITIONAL GROUNDS (SAG)

       SAG 1: Mr. Butler suggests that the State should have been prohibited from 

presenting evidence on remand because defense counsel objected to the State's proposed 

offender score at the initial sentencing.  He argues that defense counsel's comment, 
"Excuse me, Counsel.  Whether or not 1, 2 and 3 and 4 had washed,"1 is an objection.  

The quote indicates that defense counsel asked the State to clarify something, not that 

       1 RP (Aug. 29, 2008) at 19.

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No. 29598-2-III
State v. Butler

defense counsel objected to the calculation of the offender score.  But even assuming that 

the comment was an objection, we have concluded that the court correctly found that the 

State did not introduce new evidence of prior convictions. 

       SAG 2: Mr. Butler argues that the trial court erred in accepting the certified 

judgments and sentences because the record shows that the copies were not filed at the 

initial sentencing hearing.  This is the same argument that appellate counsel has made 

and, therefore, has already been addressed.  

       SAG 3: Mr. Butler argues that his right under the equal protection clause of the 

United States Constitution was violated because similarly situated defendants have 

"received better treatment."  SAG at 3.  He argues that, while other defendants are 

sentenced based upon a correct offender score, he has been treated unequally because he 

has been sentenced based upon an offender score other than zero.  As discussed above, 

the facts of this case do not warrant sentencing Mr. Butler using an offender score of 

zero.  Mr. Butler's right to equal protection was not violated.   

       We affirm the sentence.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _________________________________

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No. 29598-2-III
State v. Butler

                                                    Sweeney, J.

WE CONCUR:

______________________________                      _________________________________
Brown, J.                                           Korsmo, C.J.

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