                                                                                                       FILED
                                                                                             U'
                                                                                              0Uf?T OF APPEALS
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

STATE OF WASHINGTON,                                                       No. 42752 -4 -II


                                 Respondent,
                                                                     PUBLISHED OPINION
       ME



JOHNNIE G. BROWN,




        BJORGEN, J. —    After a trial conducted partially in absentia, a jury found Johnnie Gerard

Brown guilty of child rape and incest. Nine years later, authorities apprehended Brown, who had

absconded to another state, and returned him to Washington for sentencing. The sentencing

court declined to order a presentence report before imposing the maximum standard -
                                                                                  range term

of incarceration. Brown appeals, arguing ( 1) that the trial court improperly tried him in absentia

in violation of his right under CrR 3. 4 to be present at all stages of trial and ( 2) that the


sentencing court committed reversible error when it sentenced him for a felony sex offense

without first ordering a presentence report. Because his trial had commenced before Brown

absconded, we affirm    the   convictions.   Because the trial   court   did   not order or consider   the
No. 42752 -4 -II



presentence report mandated by former RCW 9. 94A. 110 ( 2000) before sentencing Brown for a

felony sex offense, we vacate the sentence and remand for resentencing.

                                                             FACTS


         The State charged Brown with two counts of second degree child rape or, in the


alternative, two counts of first degree child molestation; and one count of first degree incest.


Having posted a $ 100, 000 bail bond, Brown appeared out of custody on April 17, 2002, and was

present when the trial court called the case for trial and administered the initial oath to the 50-


person venire. After introducing the attorneys to the venire and giving preliminary instructions,

the trial court excused the potential jurors with instructions to fill out a questionnaire and return


the following day.

         Brown appeared the next day and was present when the State moved to strike the jury

venire   because " the   case   ha[ d]   gotten more complicated."        Verbatim Report of Proceedings


 VRP) ( Apr. 17, 2002) at 19. The defense joined the motion. Both sides expressed concern that


as many as half of the potential jurors had personal reservations related to the nature of the case

or wanted to be questioned privately, and both sides wanted additional time to interview newly-

discovered    potential witnesses and make related motions.               Brown' s   counsel stated      that "[   f]rom


the defense perspective, I couldn' t imagine that we could get a worse draw of jurors" with a

different   venire.   VRP ( Apr. 17, 2002)        at   21.   With Brown still present, the trial court excused


the   venire and " recess[ ed]    the    case until   May    6th." VRP ( Apr. 17, 2002)   at   32 -33.    As soon as


the jurors left, the court began hearing testimony on the admissibility under CrR 3. 5 of

statements Brown made to police.




                                                               2
No. 42752 - -II
           4



         Brown appeared again on April 22, 2002, and the court heard testimony and argument on

the competency of two child witnesses and the admissibility under ER 404( b) of other child sex

abuse accusations against Brown. The court scheduled the final ER 404( b) testimony for May 6

and the swearing in of a new jury venire for May 7.

         Brown did not appear on May 6, 2002. 1 His counsel affirmed that Brown had been

informed the proceedings would continue on that date and that counsel had made every effort to

contact him. On May 15, the court reconvened, made preliminary determinations that trial had

commenced and Brown' s continuing absence was voluntary, and decided to proceed in absentia

if Brown' s whereabouts remained unknown the following day.

         Brown did not appear, and the trial court administered the oath to a new venire on May

20, 2002. A jury was selected and began hearing testimony in Brown' s absence the next day.

The jury returned a verdict of guilty on the incest count and on both child rape counts.

         After his extradition nine years later, Brown appeared in custody for sentencing on

October 7, 2011.         At the hearing, Brown' s defense counsel requested a continuance, informing

the   court   that "[ t] here'   s been no presentence investigation conducted in this case, and that' s


mandatory in        a sex case."     VRP ( Oct. 7, 2011) at 8. The prosecutor expressed the belief that the


statute in effect at the time of Brown' s conviction did not require such a report. The trial court


agreed that no report was required and imposed the maximum standard -range sentence for each


count, to run concurrently, for a total of 280 months.

         Brown timely appeals.




1
    Brown' s location remained unknown to the court until shortly before his August 3, 2011
extradition.
No. 42752 -4 -II



                                                ANALYSIS


                                          I. TRIAL IN ABSENTIA


         Brown argues that the trial court improperly tried him in absentia in violation of his right

to be present. Specifically, Brown asserts that the trial did not " commence" in his presence for

purposes of CrR 3. 4, even though a venire took the oath in his presence, because the jury that

determined his guilt was selected from a different panel, one not sworn in Brown' s presence.


         Whether a defendant who witnessed the swearing of a venire may properly be tried in

absentia before a jury selected from a different venire appears to be an issue of first impression.

Because the requirement that trial commence in the defendant' s presence is intended to ensure

that waiver of the right to be present at trial is knowing, and because shortly before his

disappearance Brown witnessed the swearing of a jury panel to try him for the same charges on

which he was convicted, we hold that trial had commenced and the court below properly tried

Brown in absentia.


             We review construction of court rules de novo. State v. Bertrand, 165 Wn. App. 393,

414, 267 P. 3d 511 ( 2011) (    citing State v. Robinson, 153 Wn.2d 689, 693, 107 P. 3d 90 ( 2005)),

review   denied, 175 Wn.2d 1014, 287 P. 3d 10 ( 2010). We interpret a court rule as though it were


enacted by the legislature, giving effect to its plain meaning as an expression of legislative intent.
State   v.   Chhom, 162 Wn.2d 451, 458, 173 P. 3d 234 ( 2007).    Plain meaning, in turn, is discerned

by " reading the rule as a whole, harmonizing its provisions, and using related rules" to help

identify the intent behind it. Chhom, 162 Wn.2d at 458.




                                                     El
No. 42752 -4 -II



              CrR 3. 4, Presence of the Defendant, provides in relevant part:


               a) When Necessary.
              The defendant shall be present at the arraignment, at every stage of the trial
              including the empaneling of the jury and the return of the verdict, and at the
              imposition of sentence, except as otherwise provided by these rules, or as excused
              or excluded by the court for good cause shown.
               b) Effect of Voluntary Absence.
              The defendant' s voluntary absence after the trial has commenced in his or her
              presence shall not prevent continuing the trial to and including the return of the
              verdict.



 Emphasis         added.)      Trial in absentia, although disfavored, is therefore proper in Washington if

                                                                                                                                 2
 trial   commenced"            in   a criminal   defendant'.s   presence and    the     defendant'   s absence   is voluntary.


State    v.   Jackson, 124 Wn.2d 359, 361, 878 P. 2d 453 ( 1994) (                 citing CrR 3. 4).

              We interpret .
                           CrR 3. 4 in a manner parallel to the federal courts' interpretation of Federal


Rule     of    Criminal Procedure 43. State v. Hammond, 121. Wn.2d 787, 790 -93, 854 P. 2d 637


    1993).     In State   v.   Crafton, 72 Wn.      App.   98, 103, 863 P. 2d 620 ( 1993), we held that under CrR


3. 4, trial commences no sooner and no later than when the jury panel is sworn for voir dire. In

reaching this       conclusion, we noted           that "` when    the jury panel is sworn for voir dire, the

defendant is given an unambiguous and readily discernible sign that trial is beginning and he or

she will       have the opportunity to           participate   injury   selection. "'    Crafton, 72 Wn. App. at 103

    quoting State    v    Thomson, 70 Wn.          App.   200, 211, 852 P. 2d 1104 ( 1993),          aff'd, 123 Wn.2d 877,

872 P. 2d 1097 ( 1994)) (             alteration omitted).      This " bright- line" rule, Crafton, 72 Wn. App. at 103,

     serves to assure that any waiver [ of the right to be present at trial] is indeed knowing."'




2
  Brown does not assign error to the trial court' s finding that he voluntarily absented himself
from the proceedings and does not dispute the sentencing court' s statement that " his absence was
entirely voluntary and willful." VRP ( Oct. 7, 2011) at 7. We therefore accept the finding as
true. See State v. Ellison, 172 Wn. App. 710, 717, 291 P. 3d 921 ( 2013).
                                                                    5
No. 42752 - -II
           4



Thomson, 123 Wn.2d at 883 ( quoting Hammond, 121 Wn.2d at 792 and United States v. Crosby,

506 U. S. 255, 262, 113 S. Ct. 748, 122 L. Ed. 2d 25 ( 1993)).

          The   rule also serves,   however, to   ensure    that "` the governmental prerogative to proceed



with a trial may not be defeated by conduct of the accused that prevents the trial from going

forward. "' Taylor v. United States, 414 U. S. 17, 20, 94 S. Ct. 194, 38 L. Ed. 2d 174 ( 1973)


 quoting Illinois    v.   Allen, 397 U. S. 337, 349, 90 S. Ct. 1057, 25 L. Ed. 2d 353 ( 1970) ( Brennan,


J., concurring)).     Thus, we must also consider the governmental interest in conserving judicial

resources and accurately determining innocence or guilt.

          Brown argues that the use in CrR 3. 4 of the definite article suggests that " the empaneling

of the jury" refers to the same panel from which those jurors who actually hear the evidence in

the case are selected. In light of the principles of construction set out in Chhom and the rule' s


purposes, however, the argument fails to persuade. Brown witnessed the swearing of a venire,

and when the court excused the panel in Brown' s presence, it gave a specific date, less than three

weeks later, on which a new panel would be called and trial would resume. Brown was present


for the swearing of the first venire and received specific, unambiguous notice that a new panel

would be called on a date certain. To deem the trial to have commenced at this point under CrR

3. 4 ensures that Brown' s waiver of his right to be present was made with full knowledge.


          Brown argues to the contrary that once the court excused the panel and announced the

18 -day   delay   before    a new panel would     be   called,   there   was no "`   unambiguous and readily


discernible     sign "'   that trial had commenced. Br. of Appellant at 11 ( quoting State v. Thomas, 70

Wn.   App.   200, 211, 852 P. 2d 1104 ( 1993)).          Instead, Brown maintains that the " clear message"


was that trial would commence in 18 days.



                                                            G
No. 42752 -4 -II



       If the trial court had simply dismissed the venire without setting any specific date for

calling a new panel, or if the State had sought to substantially change the charges that the new

panel would hear, Brown' s argument that he did not have adequate notice might have more life.

Brown, however, witnessed the swearing of a jury panel to try him for precisely the same

charges of which he was ultimately convicted, and, upon excusing that panel, the trial court gave

a specific date in the near future when it would call a new panel. One can imagine a situation


where, because of the nature of the charges or the notoriety of the case, a trial court strikes so

many venire members that a full jury cannot be impaneled from the pool originally called. A

defendant who, at that point, despairs of obtaining a favorable verdict and chooses to flee should

not escape trial merely because it becomes necessary to bring in additional venire persons.

Indeed, Brown may have made exactly such a calculation here. The responses to the

questionnaires apparently suggested that a large proportion of potential jurors would have

difficulty viewing the evidence in a child sex abuse case favorably to the defendant, and Brown

was faced with the possible admission of other child sex abuse accusations against him. Under

these circumstances, where one venire has been sworn and the defendant has clear notice that a


second will be sworn on a specific date in a reasonable time, the defendant should " ot have the
                                                                                   n


option of stopping the trial because he sees his chances darkening. We hold that the trial had

commenced for purpose of CrR 3. 4, and the trial court therefore properly proceeded in Brown' s

absence. We affirm Brown' s convictions.


               II. THE TRIAL COURT' S REFUSAL To ORDER A PRESENTENCE REPORT


        Brown argues that the trial court erred in sentencing him without the benefit of a

presentence report, in violation of former RCW 9. 94A. 110. Because the statute under which the



                                                   7
No. 42752 -4 -II



trial court sentenced Brown expressly mandated such a report, and we cannot assess what impact

a report that does not exist might have had on the outcome, we vacate Brown' s sentence and


remand for resentencing.

              The trial court' s discretion in sentencing is that which is given by the Legislature,"

State   v.   Ammons, 105 Wn.2d 175, 181, 713 P. 2d 719, 718 P. 2d 796 ( 1986). We review a trial


court' s interpretation of a statute de novo, and we derive the plain meaning of a statute " from all

that the Legislature has said in the statute and related statutes which disclose legislative intent


about   the    provision      in   question."    Dep' t of Ecology          v.   Campbell & Gwinn, LLC, 146 Wn.2d 1,


11 - 12, 43 P. 3d 4 ( 2002).


             The statute in effect at the time of Brown' s conviction provided that


             the   court     shall,   at    the time       of plea   or     conviction,   order   the [ Department   of

             Corrections] to complete a presentence report before imposing a sentence upon a
             defendant who has been convicted of a felony sexual offense .... The court shall
             consider the risk assessment and presentence reports.


Former RCW 9. 94A. 110,                recodified as        RCW 9. 94A.500 ( 2002).         This statutory language is

mandatory          and unambiguous.           State   v.   Q. D.,   102 Wn.2d 19, 29 -30, 685 P. 2d 557 ( 1984) ( noting


that " use of the word ` shall' creates an imperative obligation unless a different legislative intent

can   be discerned ") ( citing         State v. Bryan, 93 Wn.2d 177, 606 P. 2d 1228 ( 1980)).

             The State properly concedes that the statute required a presentence report and the

Sentencing Reform Act' s ( SRA) prohibition on appeals of standard -range sentences does not bar
                         3
Brown' s       appeal.       The State argues, however, that the failure to order the presentence report was




3
    RCW 9. 94A. 585( 1) ( former RCW 9. 94A.210( 1) ( 2000)) provides that a standard range

sentence may not be appealed. However, our Supreme Court interpreted this provision " as only
precluding         appellate review of challenges              to the   amount of     time imposed,"   not " the procedure by
which a sentence within               the   standard range was          imposed." Ammons, 105 Wn.2d at 182 -83. To
                                                                        8
No. 42752 -4 -II



harmless error because the sentencing court, on account of Brown' s nine -year absence, would

have imposed the maximum standard range penalty regardless of the contents of such a report.

Whether harmless error analysis applies to a trial court' s failure to consider a mandatory

presentence report also appears to be an issue of first impression.

             Nonconstitutional       error requires reversal       only if, "
                                                                            within     reasonable probabilities,"   the



outcome of the proceeding " would have been materially affected had the error not occurred."

State   v.   Crenshaw, 98 Wn.2d 789, 800, 659 P. 2d 488 ( 1983) (                   citing State v. Tharp, 96 Wn.2d

591, 637 P. 2d 961 ( 1981)).           In more typical cases applying harmless error analysis to sentencing

hearings, a trial court allegedly considers information it should not have. In these cases, we

simply look at the remaining, unchallenged information to see whether it independently supports

the sentencing court' s decision. See, e. g., State v. Gutierrez, 58 Wn. App. 70, 77, 791 P. 2d 275

 1990),      abrogated on other grounds by State v. Ritchie, 126 Wn.2d 388, 894 P. 2d 1305 ( 1995);

State   v.    Whittington, 27 Wn.       App.       422, 430, 618 P. 2d 121 ( 1980). Here, in contrast, the trial


court failed to consider information it should have. In the absence of any presentence

investigation, we can only speculate as to what information a report might have contained and

what effect      that information       might      have had   on   the   outcome.   4 Thus, we cannot assess the

probability of a different outcome, and therefore cannot apply harmless error analysis.



escape the SRA prohibition on appeals of standard range sentences an appellant must show that
    the sentencing court had a duty to follow some specific procedure required by the SRA, and that
the   court    failed to do   so."    State   v.   Mail, 121 Wn.2d 707, 712, 854 P. 2d 1042 ( 1993).         Because
Brown does not challenge the length of the sentence, but argues that the court failed to follow a
specific, mandatory duty, RCW 9. 94A.585( 1) does not bar Brown' s appeal.
4
    The dissent cites this statement as evidence that our analysis rests on speculation and conjecture
as to what a report might have contained. On the contrary, our point is that without knowing
what the presentence report would say, it is impossible to apply the harmless error standard in a
principled fashion, without descent into speculation.
                                                                   9
No. 42752 -4 -II



       In State      v.   Crider, 78 Wn.   App.   849, 899 P. 2d 24 ( 1995), Division Three of this court


refused to apply harmless error analysis to a sentencing court' s failure to invite the defendant to

allocute before pronouncing sentence. The Crider court did so even though the sentencing court

had permitted the defendant to speak immediately after pronouncing sentence, stood " ready and

willing to   alter   the sentence   when presented with new           information,"    and the sentencing judge' s

comments      indicated that it   was "   unlikely anything Mr. Crider         might   have   said ...   would have


changed"     the   outcome.    Crider, 78 Wn.     App.   at   861.   The Crider court explicitly based its

holding on the right to allocute under the SRA, found in the same statutory provision at issue

here, RCW 9. 94A.500( 1),         not on any alleged constitutional right. Crider, 78 Wn. App. at 860.

        The dissent points out that we refused to follow Crider in State v. Hatchie, 133 Wn. App.

100, 118, 135 P. 3d 519 ( 2006), aff'd, 161 Wn.2d 390, 166 P. 3d 698 ( 2007), and argues that our


reliance on Crider here would require reversing Hatchie. What Hatchie declined to follow,

however, was Crider' s blanket refusal to apply harmless error analysis when a sentencing court

did not invite the defendant to allocute before imposing sentence. Hatchie held no error occurred

where the defendant was allowed to allocute after the court' s oral sentence and where the court


expressly stated it would consider the allocution, due to the

        long standing rule that a court' s oral opinion is no more than an oral expression of
        the    court' s    informal   opinion   at   the time      rendered;   it is " necessarily subject to
        further study and consideration, and may be altered, modified, or completely
        abandoned."




Hatchie, 133 Wn. App. at 118 ( quoting State v. Hescock, 98 Wn. App. 600, 606, 989 P. 2d 1251

 1999)).     Hatchie also relied on the defendant' s failure to request to allocute when the court said

it was ready to rule. Hatchie, 133 Wn. App. at 118 -19.



                                                              10
No. 42752 - -II
          4



        Brown' s situation shares none of the defining characteristics of Hatchie. Unlike

Hatchie' s allocution, a presentence report for Brown was not presented to the court at any point;

unlike Hatchie' s silence, Brown requested a continuance to allow a presentence report before


sentencing. Under Crider, consistently with Hatchie, harmless error analysis is not available to

save the failure to prepare the required report.


        The dissent relies also on our Supreme Court' s recent decision in In re Personal Restraint


of Finstad, 177 Wn.2d 501, 301 P. 3d 450 ( 2013), for the proposition that failure to follow


mandatory sentencing procedures may be harmless error. The dissent asserts that the sentencing

judge' s " unequivocal" remarks at the sentencing hearing demonstrate with sufficient certainty

that no presentence report could have affected the outcome, thus making remand futile. For the

following reasons, we respectfully disagree.

        First, the Finstad decision, and the precedents on which it relies, are inapposite to the


issues in this   appeal.   Those   cases all   turned   on   the showing necessary to       overcome    the "`   high


standard "'   a petitioner must meet to overcome the time bar against collateral attacks on criminal


convictions and. obtain     the "` extraordinary "'     relief of   upsetting   a "` settled "'   judgment. See


Finstad, 177 Wn.2d at 506 ( quoting In re Pers. Restraint of Coats, 173 Wn.2d 123, 132 -33, 267

P. 3d 324 ( 2011) (   citing In re Pers. Restraint of Cook, 114 Wn.2d 802, 810 -12, 792 P. 2d 506

 1990))).     The Coats court justified this potentially harsh time bar in part on the ground that the

rights to appeal and to timely collateral review sufficiently protect defendants. Coats, 173

Wn.2d at 140 -41.


        Further, Finstad "` received the precise sentence he stipulated to in the plea agreement "'


leaving no doubt as to the outcome had Finstad timely objected to the lack of findings. Finstad,


                                                             11
No. 42752 -4 -II



177 Wn.2d       at   511 ( quoting State    v.   Chambers, 176 Wn.2d 573, 586, 293 P. 3d 1185 ( 2013)).    The


absence of speculation required in Finstad further distances it from this case, where we can only

guess what information a nonexistent report might have contained. Finstad and the cases on

which it relies do not establish that harmless error analysis applies to direct review of a trial


court' s failure to order a mandatory presentence report; nor do they address the points raised in

our analysis above. To the extent that these precedents have any relevance here, where Brown

timely objected and properly raised the issue on appeal, the cases suggest that direct appeal is

precisely the vehicle by which to correct such errors.

        We also do not find the sentencing court' s comments as unequivocal as our dissenting

colleague does. Prior to pronouncing sentence, the court stated that

        Mr. Brown, by his own actions was allowed to maintain his freedom while other
        folks had to endure the torture of going through a trial process, coming in and
        testifying in                 I think to basically reward Mr. Brown for his actions
                           open court....

        would subvert           the           I don' t think he should be awarded [ sic] by
                                      entire process.

        getting an additional nine years of freedom and then get a low end sentence.

VRP ( Oct. 7, 2011)        at   13.   Certainly, these remarks establish that Brown had little chance of

getting "   a   low -
                    end   sentence."     Omitting the low end of the range, however, leaves considerable

room for a different outcome: the court might have imposed anything from a mid -
                                                                               range sentence

to consecutive exceptional sentences. Again, without the presentence report one can only

speculate.




        Finally, the presentence report can play a vital role in ensuring that the voices of victims

are heard. Particularly significant here, RCW 9. 94A.500( 1) states that the court " shall consider

the risk assessment report and presentence reports, if any, including any victim impact statement

       The version of this provision in effect when Brown committed his crimes, former RCW


9. 94A. 110, is of similar effect. More broadly, the state constitution has enshrined certain rights
                                                             12
No. 42752 -4 -II



of crime victims "[        t] o ensure victims a meaningful role in the criminal justice system and to


accord   them due        dignity   and respect."           WASH. CONST.    art.   I, § 35.   Our Supreme Court recently

noted that " a victim impact statement is a vehicle for a victim to exercise her constitutional and


statutory   right   to   address   the trial       court   before it imposes   sentence."      Koenig v. Thurston County,

175 Wn. 2d 837, 844, 287 P. 3d 523 ( 2012). Where such a report establishes that the impact on


the victim was significantly more serious than in a typical case, it will support imposition of an

exceptional sentence.           State       v.   Tunell, 51 Wn.   App.   274, 279 -80, 753 P. 2d 543 ( 1988),     overruled




on other grounds          by   State   v.   Batista, 116 Wn.2d 777, 808 P. 2d 1141 ( 1991).               Thus, presentence


reports are an important channel for bringing the voices of victims to the court before
              5
sentencing.


         The importance. of such victim impact statements and the presentence report are aptly

illustrated by the facts of this case. The victim did not address the court or provide a written

statement at sentencing, and the record reveals numerous reasons why she may not have. Even

an adult would understandably feel reluctant to express her feelings about sexual abuse by a

parent in such a public way, even if only in writing. A number of family members, including

defendant Brown and the victim' s father, were present at sentencing. In addition, a camera crew

was   filming the        sentencing proceeding for            possible   broadcast    on   the "   Washington' s Most


Wanted" television program.


         Had the court below followed the statute, the investigator charged with preparing the

presentence report would likely have reached out to the victim privately to seek her input. As



5 The dissent responds by noting that a member of the victim' s family presented an impact
statement on her behalf. Again, however, without knowing what the presentence report would
have said, it is impossible to know if the error in its omission harmed the defendant.
                                                                   13
No. 42752 -4 -II



suggested by the facts here, such an investigation may in many cases be the only effective way to

bring the voices of victims of sexual abuse before the court. Where the legislature has made

such investigations mandatory, as it has done for felony sexual offenses, we should not lightly

overlook a sentencing court' s refusal to order one.

             Former RCW 9. 94A. 110 required the trial court to order the Department to complete a


presentence report before imposing sentence on Brown. The court did not issue this order, and

the Department did not prepare the required presentence report for the court' s consideration.


Because we cannot know.whether this error affected the outcome, we decline to apply harmless

error analysis. We therefore vacate Brown' s sentence and remand for resentencing according to
                            6
the   proper procedure.



                                                CONCLUSION


             The trial court did not err in proceeding in Brown' s absence, and we affirm his

convictions. We vacate his sentence and remand for resentencing, however, because the court

below exceeded its authority by proceeding without the mandatory presentence report.

                                                              r




                                                        B T JRGE
I    concur:
                       r`




T'
      vC :   AIt, .




b
 Alternatively, imposition of a sentence in violation of the SRA is not within the court' s
authority. See Ammons, 105 Wn.2d at 180 -81; State v. Shove, 113 Wn.2d 83, 86 -89, 776 P. 2d
 132 ( 1989). Because this sentence violated an express requirement of the SRA to which the
harmless error rule did not apply, it was therefore outside the trial court' s authority.
                                                      14
No. 42752 -4 -II


           HUNT, P. J. —         I   concur with     the majority' s      affirmance      of     Brown'   s   convictions.    But I


respectfully dissent from the majority' s ( 1) speculation that the trial court might have imposed a

different       sentence   if it had       considered a presentence report, (            2) refusal to consider a harmless


error analysis, and ( 3) remand to the trial court for resentencing with a presentence report.

           In my view, the lack of a statutorily required presentence report at sentencing was

harmless error and remand for resentencing is a waste of resources for no commensurate gain in

justice.    The record shows that the likelihood of a different sentence on remand is remote, as


exemplified by the trial court' s following express rejection of a low end sentence because Brown

had absconded for nine years after raping his daughter:

                     Mr. Brown, by his own actions was allowed to maintain his freedom while
           other   folks had to        endure   the torture   of   going through     a   trial   process, ....      I think
           to   basically   reward         Mr. Brown for his    actions would subvert             the   entire process.   I

           don' t think he should be awarded by getting an additional nine years of freedom
           and then get a low end sentence.


Verbatim Report            of   Proceedings ( Oct. 7, 2011)         at   13 (   emphasis added).          I would acknowledge


the statutory requirement of a presentence report, apply the harmless error test, and hold that

Brown is not entitled to remand for resentencing because he fails to show that his sentencing

outcome would have materially differed with a presentence report.

                                             I. NO PREJUDICE; HARMLESS ERROR


           Lack of prejudice is the essence of harmless error. As the majority notes,

                     Non -
                         constitutional           error   requires       reversal   only     if, "within         reasonable

           probabilities,"           the   outcome   of   the   proceeding "        would have been materially
           affected   had the         error not occurred."      State v. Crenshaw, 98 Wn.2d 789, 800, 659
           P. 2d 488 ( 1983) (         citing State v. Tharp, 96 Wn.2d 591, 637 P. 2d 961 ( 1981)).




                                                                   15
No. 42752 -4 -II



Majority    at   9. In the collateral attack context, the appellate court will not remand for relief even


from an acknowledged improperly imposed sentence, absent a showing of actual and substantial

prejudice    or " a   fundamental defect ...           that inherently resulted in a complete miscarriage of

justice." In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 506, 301 P. 3d 450 ( 2013).


          Here, Brown fails to          show actual prejudice under         any     standard.    Instead, he focuses on


the error itself as warranting remand for resentencing primarily because the statute requires; and

then he merely speculates about how a presentence report might result in a lower sentence. Even

my colleagues in the majority acknowledge that identifying a different outcome with a

presentence       report   requires "    speculation"    and   that   they " cannot assess the probability of a

                           8
different   outcome. "         Such   speculation,   however, is    not   the   applicable    test.   Rather, based on the


record before us, Brown must show prejudice flowing from the claimed error such that we can

articulate " within reasonable probabilities"             that Brown' s sentence would have been materially

different had a presentence report been prepared. Crenshaw, 98 Wn.2d at 800.

          But when we apply this test here, the record shows no such reasonable probability that

the trial court would have imposed a materially different sentence even if it had a presentence



7
  I recognize that the scope and standard of review on direct appeal differ from those applicable
to a personal restraint petition, such as the one in Finstad. Thus, I cite Finstad merely as a recent
example of our        Supreme Court'       s unwillingness     to disrupt       a " settled   judgment," even where the

State concedes the invalidity of a judgment and sentence and the trial court' s " failure to follow
statutory sentencing           procedures,"     unless the petitioner shows he was " prejudiced by the claimed
error."    Finstad, 177 Wn.2d at 503, 506.

 8
     See majority at 9:
          In the absence of any presentence investigation, we can only speculate as to what
           information a report might have contained and what effect that information might
           have had    on      the   outcome.    Thus, we cannot assess the probability of a different
           outcome, and therefore cannot apply harmless error analysis.
     Emphasis added.)
                                                               16
No. 42752 -4 -II



report   to   consider.    On the contrary, as quoted above, the trial court expressly stated that it did

not consider imposing a low end sentence because it would be unfair to the victim, especially

against the backdrop of Brown' s absconsion and having been at liberty for nine years after

raping the     victim.     In my   view, we need not resort            to " speculation" to conclude on the record

                                                                                                                            9
before   us   that a presentence     report would not cause           the trial court to   shorten   Brown'   s sentence.




          The majority relies on a Division Three opinion, State v. Crider, 78 Wn. App. 849, 899
P. 2d 24 ( 1995), to       support   its   aversion   to   a   harmless   error analysis    here10, despite our express


refusal " to follow Crider" seven years ago in State v. Hatchie, 133 Wn. App. 100, 118, 135 P. 3d

519 ( 2006), aff'd, 161          Wn.2d 390, 166 P. 3d 698 ( 2007).                  But even if our court were to


contemplate reversing Hatchie on this point, Brown' s case does provide the appropriate context

in which to reconsider our previous rejection of Crider because Crider involved denial of a

defendant' s absolute right to allocution at sentencing, which is not comparable to the lack of a

presentence report here. Unlike my majority colleagues, I.find no factual or legal bar to applying

a   harmless    error analysis     here.    I would hold that the trial court' s failure to order a presentence


report for consideration at sentencing, though contrary to statutory mandate, had no material

prejudicial effect on Brown' s sentence and, thus, was harmless error.




9 Even the majority agrees that " these remarks establish that Brown had little chance of getting `a
 low -
     end              Majority at 12 ( emphasis added). Nevertheless, rather than focusing on
              sentence. "'

 whether the absence of a presentence report actually prejudiced Brown, the majority opines:
          Omitting the low end of the range, however, leaves considerable room for a
          different    outcome:       the court might have imposed anything from a mid -
                                                                                       range
          sentence    to     consecutive    exceptional        sentences.    Again, without the presentence

          report one can only speculate.
 Majority at 12 ( emphasis added).

 10 See majority at 10.
                                                                 17
No. 42752 -4 -II



                                      II. OPPORTUNITY     FOR   DOC11 INPUT


         The majority further asserts that harmless error analysis is not appropriate because ( 1) the

Sentencing Reform Act confers rights on non -litigants, such as the DOC and victims, who may

submit   impact   statements; and (    2) "   presentence reports are an important channel for bringing the

voices of victims    to the   court   before sentencing."       Majority   at   13.   I do not disagree with my

colleagues' assertion that the presentence report may be an important vehicle for bringing forth

these important    perspectives.      I do, however, disagree with the majority' s implication that the

trial court did not hear these perspectives and that, to the extent that these voices must be voiced

through a presentence report, the absence of this medium is fatal to affirming Brown' s sentence.

         Here, the prosecutor appeared on behalf of the State of Washington and expressly

recommended a high end standard sentence on behalf of the people of the State, including the

                      behalf                                      her impact      statement at                 The
victim, on whose               a   family     member presented                                   sentencing.


record shows that, despite the absence of a presentence report, the trial court clearly heard the

victim' s voice; and, in response to her voice as well as other factors, it imposed the maximum

sentence under the law.


         Therefore, I respectfully disagree with my colleagues' conclusion that we cannot consider

harmless error under the facts here and that remand for resentencing with a presentence report is

necessary. In addition to affirming Brown' s                        I   would also

                                                                                      affirm
                                                                                          1f

                                                                                                    P




                                                                   P. J.




 11 Department of Corrections ( DOC).
                                                          M
