                                                                          FILED
                                                                        DEC. 31, 2013
                                                                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
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 30658-5-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
IGNACIO COBOS,                                )         PUBLISHED OPINION
                                              )
                      Appellant.              )

       FEARING, J. — Statutes and case law aspire to accurate criminal sentences

regardless of untimely objections to their correctness and despite a previous failure to

supply sufficient data to levy informed sentences. “[Our] purpose is to preserve the

integrity of the sentencing laws” and to avoid widely varying sentences. State v.

Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009) (citing State v. Ford, 137 Wn.2d

472, 478, 973 P.2d 452 (1999)). We have the opportunity to fulfill this aspiration and

satisfy this purpose in this appeal.

                             INTRODUCTION AND RULING

       A jury convicted Ignacio Cobos of delivery of methamphetamine, possession of
No.30658-5-III
State v. Cobos




methamphetamine, and voyeurism. The trial court sentenced Cobos to 120 month's

confinement.

       Cobos appeals his sentence, arguing that, despite timely objecting to his offender

score at sentencing, the court failed to hold an evidentiary hearing. The State concedes

Cobos objected to his offender score at a sentencing hearing, but argues that, at a prior

sentencing hearing, his attorney agreed with the offender score, and the State relied on

the agreement. The State also argues that, if this court finds Cobos' subsequent objection

to his offender score negates his attorney's prior representation, it be allowed, on remand,

to enter certified records of Cobos' prior convictions to substantiate his offender score.

Cobos opposes the State's entreaty and requests this court hold the State, on remand, to

the existing record. We agree with Cobos that he is entitled to a sentencing evidentiary

hearing and agree with the State that it may enter additional evidence at the new hearing.

                                          FACTS

       After Ignacio Cobos' convictions, the court scheduled sentencing hearings for

January 18, and January 31, 2012. Both hearing dates were postponed and the first

sentencing hearing was held on February 7, 2012.

       At the February 7 hearing, Cobos moved to represent himself. After Cobos

brought the motion, but before the court granted the motion, the State and Cobos'

attorney agreed on an offender score of 9. Afterward, the sentencing court granted

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State v. Cobos


Cobos' motion to represent himself and, at the request of Cobos, the court continued the

sentencing hearing one week to February 14,2012.

       At the February 14 hearing, Cobos objected for the first time to his offender score

listed in the report. CrR 7.1 (c) requires a party challenging a presentence report to notify

opposing counsel at least three days before the sentencing hearing. When questioned

why he objected, Cobos replied that he must verify whether convictions included in his

score were reversed on appeal. During the Valentine's Day hearing, the court also

expressed concern over a discrepancy between the presentence investigation report (PSI)

and the Interstate Identification Index (Triple I). The PSI omitted one conviction

contained in the Triple I.

       During the February 14 hearing, the State alertly offered to obtain certified records

of Cobos' judgments and sentences if the court continued the sentencing hearing. Cobos

objected to a postponement, claiming a right to "speedy sentencing." Verbatim Report of

Proceedings (Feb. 14,2012) at 20. RCW 9.94A.500(1) requires that sentencing occur

within 40 days of a defendant's conviction, but a court may extend that time period for

good cause shown or on its own motion. And, when a defendant objects to facts material

to their offender score, a sentencing court must hold an evidentiary hearing. RCW

9.94A.530(2).

       During the February 14 sentencing hearing, the court gave Ignacio Cobos




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No.30658-5-III
State v. Cobos


two options: (1) continue the sentencing hearing for one week so that the State can obtain

certified records of his prior convictions, or (2) proceed with the sentencing hearing and

the court would rely on the offender score his fonner attorney and the State agreed to at

the February 7 hearing. Cobos rejected both options, and the court proceeded with

sentencing. Relying on Cobos' fonner attorney's representation that the offender score is

accurate, the court sentenced Cobos to 120 months.

                                       ANALYSIS

       Sentencing Hearing. Ignacio Cobos asks this court to remand his sentencing

because he objected to his offender score and the sentencing court failed to hold an

evidentiary hearing to establish his prior convictions. The State responds that it

reasonably relied on the ratification of Cobos' offender score by his attorney at the

February 7 hearing, such that an evidentiary hearing was unneeded. We grant Cobos'

request.

       The trial court must conduct a sentencing hearing before imposing a sentence on a

convicted defendant. RCW 9.94A.500(1); State v. Hunley, 175 Wn.2d 901,908,287

P.3d 584 (2012). A defendant's criminal history or offender score affects the sentencing

range and is generally calculated by adding together the defendant's current offenses and

prior convictions. RCW 9.94A.589(l)(a); Hunley, 175 Wn.2d at 908-09. At sentencing,

the State bears the burden to prove the existence of prior convictions by a preponderance

of the evidence. Mendoza, 165 Wn.2d at 920. The State, not the defendant, holds the

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State v. Cobos


obligation to assure that the record before the sentencing court supports the criminal

history determination. Ford, 137 Wn.2d at 480. The best evidence of a prior conviction

is a certified copy of the judgment. State v. Lopez, 147 Wn.2d 515,519, 55 P.3d 609

(2002) (quoting Ford, 137 Wn.2d at 480). Bare assertions, unsupported by evidence, do

not satisfy the State's burden to prove prior convictions. Hunley, 175 Wn.2d at 910.

       When a convicted defendant disputes facts material to his sentencing, "the court

must either not consider the fact or grant an evidentiary hearing on the point." RCW

9.94A.530(2); accord State v. Cadwallader, 155 Wn.2d 867,874, 123 P.3d 456 (2005).

Thus, we must ask: (1) whether Cobos' objection to the offender score at the February 14

hearing overrode his former counsel's ratification at the February 7 hearing, (2) whether

the facts to which Cobos objected were material to his sentencing, and (3) whether the

court considered those facts when sentencing Cobos.

      We rule that Ignacio Cobos' objection to his offender score at the February 14

hearing superseded his former attorney's representation. After winning the motion to

represent himself, Cobos should have become the master of his legal strategy. The court

had yet to determine the score. His counsel had agreed to a score while Cobos' motion to

represent himself was pending. Thus, the State was on notice that counsel may be




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     No. 30658-5-111
     State v. Cobos


     shortly removed. Sentencing is a critical step in the criminal justice system. Hunley,

     175 Wn.2d at 910 (quoting In re Pers. Restraint oj Williams, 111 Wn.2d 353,357,759

     P.2d 436 (1988)). Since the offender score affected Cobos' length of punishment, the

     score concerned a substantive right, not a procedural right, Miller v. Florida, 482 U.S.

     423,107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987); Meadv. Comm'r ojCorr., 282 Conn. 317,

     323,920 A.2d 301 (2007); Krebs v. State, 534 So.2d 1236, 1237 (Fla. Dist. Ct. App.

     1988), for which counsel lacked authority to bind his client.

            An attorney can waive his client's substantive rights only with specific

     authorization. State v. Ford, 125 Wn.2d 919,922,891 P.2d 712 (1995) (quoting In re

     Adoption ojCoggins, 13 Wn. App. 736, 739, 537 P.2d 287 (1975)). While an attorney is

     impliedly authorized to waive procedural matters, a client's substantial rights may not be

     waived without that client's consent. Graves v. P.J. Taggares Co., 94 Wn.2d 298, 303,

     616 P.2d 1223 (1980); State v. Sain, 34 Wn. App. 553, 556-57, 663 P.2d 493 (1983).

     Although no case directly answers the question, a rule mentioned in passing in one

     decision suggests that an opposing party may not assume an attorney has authority to

     bind his client on any matter, when the opposing party has notice that the client wishes to

     terminate the services of the attorney, regardless of whether the attorney has yet to

     withdraw. In Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978), our high court

     wrote: 

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    State v. Cobos


           But once a party has designated an attorney to represent him in regard to a
           particular matter, the court and the other parties to an action are entitled to
           rely upon that authority until the client's decision to terminate it has been
           brought to their attention.

           Our Supreme Court has also held that a sentencing court must conduct an

    evidentiary hearing when a defendant objects to the State's calculation ofthe offender

    score, even if that defendant's counsel agreed with the offender score. State v.

    Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007). In Bergstrom, the State relied on

    Bergstrom's attorney's acknowledgment of the standard sentence range and offender

    score. Id. at 95. Despite the State's reasonable reliance, the court still held that, because

    the sentencing court considered Bergstrom's pro se motion objecting to his offender

    score, "the sentencing court erred when it failed to hold an evidentiary hearing and

    instead sentenced Bergstrom." Id. at 97. Bergstrom had not sought or been granted the

    ability to represent himself, but only disagreed with his counsel. Id. at 91. The

    Bergstrom ruling applies with stronger force to Cobos' situation since he represented

    himself by the time of the sentencing hearing.

           Cobos also shows the facts to which he objected were material. Cobos objected to

    every prior conviction. Because the prior convictions control his offender score, his

    objections are material. RCW 9.94A.525.

           The sentencing court relied on the material facts to which Cobos objected when

    determining his sentence. The court's remarks at sentencing show it imposed the


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State v. Cobos


maximum sentence possible because many prior convictions demonstrated prison will not

change his behavior.

       In short, the sentencing court erred when it failed to hold an evidentiary hearing

and instead relied on material facts to which Cobos objected.

       Evidence at Resentencing. Ignacio Cobos contends the State should be precluded

from entering new evidence into the record on the remand for resentencing. He relies on

State v. Lopez, 147 Wn.2d 515, 55 P.3d 609 (2002) where the court precluded the State

from entering new evidence of the defendant's alleged prior convictions on remand for

resentencing because the defense timely notified the State of its obligation to establish the

prior convictions. Cobos' case is unlike Lopez and more analogous to Bergstrom, where

the State was allowed to introduce new evidence on remand for resentencing because the

defendant's pro se objection was untimely, and the sentencing court failed to hold an

evidentiary hearing. Bergstrom, 162 Wn.2d 87.

       We need not decide, however, whether to follow Lopez or Bergstrom. Subsequent

to the two decisions, the state legislature amended RCW 9.94A.530(2) to permit, in all

cases, new evidence at resentencing. RCW 9.94A.530(2) now reads:

      On remand for resentencing following appeal or collateral attack, the
      parties shall have the opportunity to present and the court to consider all
      relevant evidence regarding criminal history, including criminal history not
      previously presented.




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     No. 30658-5-111
     State v. Cobos


     See LAWS OF 2008, ch. 231, § 4. The intent of this amendment is confinned by another

     2008 amendment. See LAWS OF 2008, ch. 231, § 1. Former RCW 9.94A.525(21) (2008)

     provided: "Prior convictions that were not included in criminal history or in the offender

     score shall be included upon any resentencing to ensure imposition of an accurate

     sentence."

I           Our high court has proclaimed as unconstitutional two sections of the 2008

j    amendments, one that requires the defendant to affinnatively object to a score and one


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     that declares presentence reports prima facie evidence because of a violation of due

     process rights. Hunley, 175 Wn.2d 901. Nevertheless, the amendment to RCW

     9.94A.530(2), allowing inclusion of additional convictions on resentencing, is

     constitutional. The amendment is consistent with the United States Supreme Court's

     holding in Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998),

     that double jeopardy is not implicated at resentencing following an appeal or collateral

     attack. Our Supreme Court has already permitted the entry of new evidence upon

     resentencing. Bergstrom, 162 Wn.2d 87.




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I    No. 30658-5-111
     State v. Cobos


                                           CONCLUSION
~
               We remand for resentencing and allow both the State and Cobos to supplement the


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     record.



                                                     :3h~             :T

                                                   Fearin~)
I

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   WE CONCUR:


        ~1t1~y
     Siddoway, A.C.J.                 U            Kulik, J.




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