       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                         1      No. 69120-1-1
                                                                                             o
                    Respondent,                                                         ceo
                                                                                        —i cr.
                                         )      DIVISION ONE
             v.                                                                              o




JAMES 0. WIGGIN,                         )      UNPUBLISHED OPINION                CD

                                                                                         C/i i"'-"i

                                                                                         ^       r—
                    Appellant.           )       FILED: March 10, 2014


      Becker, J. — Appellant James Wiggin challenges an order sentencing

him to a 12-month term of community custody. Because he was denied his right

of allocution, we reverse and remand for a hearing before a different judge.

      On March 22, 2010, after a bench trial in front of Judge Gerald Knight,

Wiggin was convicted of one count of failing to register as a sex offender during

the period April 7 to May 30, 2009. The standard range for that offense is 0 to 12

months in jail. Judge Knight sentenced Wiggin to 30 days in jail with credit for

time served and 36 months of community custody. Wiggin appealed the

community custody term. The State conceded error. This court remanded the

case for resentencing. "We accept the State's concession that under the

applicable version of the statute, former RCW 9.94A.505(2)(b) (2008), where an

offender is sentenced to not more than one year of confinement, the term of
No. 69120-1-1/2



community custody should not have exceeded one year." State v. Wiggin. noted

at 161 Wn. App. 1020,2011 WL 1534508. at *4. review denied. 172Wn.2d 1019

(2011).

      Following remand, the trial court made several attempts to resentence

Wiggin. Our disposition is based on the first attempt. On November 22, 2011,

the State presented ex parte a document titled "Agreed Order Modifying

Judgment and Sentence." The prosecutor later explained that he "handed up" an

agreed order under the mistaken belief that the court had no discretion to order

anything less than 12 months. Report of Proceedings (Feb. 17, 2012) at 2. This

purportedly agreed order, which imposed 12 months of community custody, was

not signed by defense counsel. In fact, it had never been seen by Wiggin or

defense counsel. Judge Richard Okrent, Judge Knight's successor, signed the

order. When Wiggin learned of this document several months later, he appealed.

The State agreed to a resentencing hearing. The State's memorandum

explaining the situation notes that Wiggin "argued that he was not given an

opportunity to be heard at the resentencing." Clerk's Papers at 354.

          A resentencing hearing was set for February 17, 2012. Wiggin was

present and represented by counsel. Wiggin's position was that the trial court

should impose little or no community custody. He objected that he had been

transported from Department of Corrections custody to the jail without knowing

what the hearing would be about, he was unable to meaningfully confer with an

attorney before the hearing, and he was unable to obtain mental health records
to support his argument for mitigation. At the end of the hearing, Judge Okrent
No. 69120-1-1/3



once again imposed 12 months of community custody. Wiggin appealed. The

State agreed that Wiggin should have another resentencing hearing, where he

would have notice and the opportunity to confer with counsel before the hearing,

and where he would have the opportunity to present his mental health records as

mitigating evidence in support of his request that the term of community custody

be less than 12 months.

       The most recent resentencing began with an initial hearing on June 8,

2012. At the hearing, Wiggin asked Judge Okrent to recuse himself because

"essentially the court has ruled on this matter twice, once through the original ex-

parte order and once through at the last hearing, and Mr. Wiggin feels that you

are predisposed towards - both times you've come to the conclusion of 12

months probation." The judge continued the hearing until the following week and

said he would take the issue of recusal under advisement in the meantime. "If I

decide to recuse myself, I'll do it by a written entry so you'll know ahead of time."

       The continued hearing occurred on June 12, 2012. The record does not

include a written entry on the recusal issue. Wiggin asked for a ruling on the

recusal issue. Judge Okrent responded, "I'm not going to recuse myself as I

have already made a decision in this case. I will not recuse myself and the

record will reflect that. Let's proceed." The judge proceeded to hear argument

from defense counsel as to why, in Wiggin's particular circumstances, a 12-

month term of community custody would be too onerous. The judge began to

discuss the history of the case and noted that he had read the entire file,

including the supplemental materials concerning Wiggin's mental health history.
No. 69120-1-1/4



         At this point, defense counsel interrupted and stated that Wiggin wanted to

address the court before it ruled. The judge then heard from Wiggin, who

reviewed the case in detail and argued that his situation warranted a term of

community custody at the bottom end of the range of 0 to 12 months. Judge

Okrent announced that he would adhere to the decision he had reached at the

hearing on February 17, 2012. "And I've heard the argument from Mr. Wiggin

and I appreciate his point of view and I think he's had his chance to explain to me

his rationale .... Nonetheless, he's similarly situated with this crime to others.

As a result, I'm going not to change my original sentence. It will be 12 months

concurrent with the other conviction in terms of community custody." (The "other

conviction" is a robbery conviction; Judge Okrent learned at the February 17

hearing that Wiggin was serving a prison sentence for the robbery, to be followed

by an 18-month term of community custody. Wiggin argued that he hoped to

prevail in an appeal of the robbery conviction).

         Wiggin appeals from the 12-month term of community custody imposed on

June 12, 2012. He contends the trial court abused its discretion by denying his

motion to recuse. He asks this court to remand for resentencing by a different

judge.

         Wiggin first argues that the trial court's denial of his request for recusal

was based on an erroneous understanding that Wiggin was trying to file an

untimely affidavit of prejudice.

         Affidavits of prejudice permit a party to change judges once as a matter of

right. RCW 4.12.050(1); State v. Dominguez. 81 Wn. App. 325, 328, 914 P.2d
No. 69120-1-1/5



141 (1996). But an affidavit of prejudice must be filed and called to the attention

of the judge before he or she makes any ruling whatsoever in the case. RCW

4.12.050(1). No such deadline exists to bar motions for recusal. These two

methods by which a party may attempt to effect a change of judge—affidavit of

prejudice and request for recusal—are independent of each other and are

analyzed by different legal standards.

      At the hearing on June 12, 2012, Judge Okrent announced that he was

"not going to recuse myself as I have already made a decision in this case."

While this statement can be construed as the result of confusing a recusal motion

with an affidavit of prejudice, it may have simply meant that the judge had

already decided not to recuse himself. Wiggin did not seek clarification in the

trial court. Under these circumstances, where the issue is raised for the first time

on appeal, we decline to speculate that Judge Okrent thought he was dealing

with an affidavit of prejudice. We presume that he knew he was denying a

request for recusal, and we will evaluate that decision accordingly.

       A trial judge's decision whether to recuse him or herself is reviewed for an

abuse of discretion. State v. Leon. 133 Wn. App. 810, 812, 138 P.3d 159 (2006),

review denied. 159 Wn.2d 1022 (2007). "Ajudge shall disqualify himself or

herself in any proceeding in which the judge's impartiality might reasonably be

questioned." CJC Canon 2.11(A) (emphasis added). In determining whether

recusal is warranted, actual prejudice need not be proved; a mere suspicion of

partiality may be enough to warrant recusal. Sherman v. State. 128 Wn.2d 164,

205, 905 P.2d 355 (1995). The test for determining whether the judge's
No. 69120-1-1/6



impartiality might reasonably be questioned is an objective test and assumes that

a reasonable person knows and understands all relevant facts. Sherman. 128

Wn.2d at 206.

      On June 8, 2012, Wiggin requested Judge Okrent to recuse himself on the

ground that the judge had already imposed a 12-month term twice, once through

the order presented ex parte by the State on November 22, 2011, and again at

the flawed hearing on February 17, 2012, where Wiggin had not been given the

opportunity to consult with counsel in advance or present mitigating evidence.

Wiggin contends that it was not possible for him to get a fair and unbiased

hearing before Judge Okrent under these circumstances because he considered

and acted upon information received ex parte.

       Receipt of ex parte communication does not automatically require recusal

as a matter of law. Recusal is required where ex parte communication reveals or

implies a bias toward one party or shows that the judge's future rulings in the

case would be affected. State v. Davis. 175 Wn.2d 287, 307-08, 290 P.3d 43

(2012), cert denied, 134 S. Ct. 62 (2013). Sherman is an illustrative case. In

Sherman, the University of Washington had terminated a doctor from a residency

program. The trial judge directed his extern to call the Washington Monitored

Treatment Program (WMTP) for general information to enable him to understand

and resolve a discovery dispute over documents that he was reviewing in

camera. When the parties discovered the ex parte communication, they

immediately moved for recusal. The judge refused. Sherman appealed. The

Washington Supreme Court held that the judge's violation of the rule against ex
No. 69120-1-1/7



parte communications required recusal. "By contacting the WMTP for

information about the monitoring process for chemically dependent physicians,

the trial judge may have inadvertently obtained information critical to a central

issue on remand, namely, whether Dr. Sherman's continued participation in the

WMTP is a reasonable accommodation of his chemical dependency. Given that

fact, a reasonable person might question his impartiality." Sherman. 128 Wn.2d

at 206. A similar result was reached in State v. Romano. 34 Wn. App. 567, 662

P.2d 406 (1983). In Romano, the trial judge called at least two friends of the

defendant to verify the income information the defendant testified to for the

purposes of sentencing and restitution. Because the ex parte contact created the

appearance of partiality and "clouded the proceeding," the sentencing order was

reversed and remanded for resentencing by another judge. Romano. 34 Wn.

App. at 569.

       A case where recusal was not required is State v. Davis. 175 Wn.2d 287,

290 P.3d 43 (2012). In Davis, the trial judge asked a prosecutor he saw in the

courthouse hallway to prepare a new scheduling order, approve it, and give

defense counsel a copy for signature. Davis. 175 Wn.2d at 304-05. Defense

counsel moved that the trial judge recuse himself based on the alleged improper

contact. Davis. 175 Wn.2d at 305. The trial judge refused to recuse himself.

Davis appealed. The Supreme Court concluded that nothing in the judge's ex

parte communication revealed or implied a bias toward one party or that his

future rulings in the case would be affected.

       The decision to accelerate trial, which the trial judge believed was
       purely ministerial, was made well before the communication
No. 69120-1-1/8



       occurred. Furthermore, the judge did not discuss any substantive
       issue during the communication. While Davis correctly points out
       that former Canon 3(A)(4) does not require the communication to
       be substantive for a violation to occur, the content of the
       communication is key in evaluating whether the judge appears
       partial for purposes of the former Canon 3(D).

Davis. 175 Wn.2d at 307-08.

       The present case is like Davis, not like Sherman or Romano. Judge

Okrent did not seek out information about the case, and the mislabeled "Agreed

Order" did not provide him with information. We conclude that Judge Okrent did

not abuse his discretion in refusing to recuse himself on the basis of the ex parte

communication.

       However, Wiggin supports his request for remand and rehearing before a

different judge with the additional argument that Judge Okrent denied him the

statutory right of allocution. A trial court must allow allocution during the

sentencing hearing prior to the imposition of sentence. RCW 9.94A.110; In re

Pers. Restraint of Echeverria. 141 Wn.2d 323, 336, 6 P.3d 573 (2000).

       When the right of allocution is inadvertently omitted until after the court

has announced the sentence it intends to impose, there is an appearance of

unfairness. The remedy is to send the defendant before a different judge for a

new sentencing hearing. State v. Aguilar-Rivera. 83 Wn. App. 199, 203, 920

P.2d 623 (1996).

       A failure to allow allocution cannot be raised for the first time on appeal.

State v. Hughes. 154Wn.2d 118, 153, 110P.3d 192 (2005). overruled in part on

other grounds. Washington v. Recuenco. 548 U.S. 212, 126 S. Ct. 2546, 165 L.

Ed. 2d 466 (2006). Judge Okrent did permit Wiggin to allocute at the final

                                           8
No. 69120-1-1/9



hearing on June 12, 2011, after being prompted by defense counsel. Wiggin's

argument is directed at November 11, 2011, the date on which Judge Okrent

signed the so-called "Agreed Order" that the State had presented ex parte. As

the State has recognized, Wiggin objected that he was not given an opportunity

to be heard before Judge Okrent signed that order resentencing Wiggin to 12

months of community custody.

       Because there was no actual hearing, Wiggin's objection preserved for

appeal his argument that the court failed to allow allocution on November 11,

2011. Wiggin from that point on was in the same position as the defendant in

Aguilar-Rivera. where we said, "Although it is clear to us that the sentencing

judge sincerely tried to listen to allocution with an open mind, the judge's

oversight effectively left Aguilar-Rivera in the difficult position of asking the judge

to reconsider an already imposed-sentence." Aguilar-Rivera. 83 Wn. App. at

203. We conclude Wiggin is entitled to the remedy required by Aguilar-Rivera.

       Reversed and remanded for resentencing before a different judge.




                                                   I j£cX<e d
WE CONCUR:




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