 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                                  No. 75918-3-1
                     Respondent,
                                                 DIVISION ONE
              V.
                                                  UNPUBLISHED OPINION
MICHAEL WILLIAM HUTTON,

                     Appellant.                  FILED: March 5, 2018


       TRICKEY, J. — Michael Hutton pleaded guilty to various domestic violence
offenses and the aggravating factor of a prolonged pattern of abuse. Hutton

stipulated to the facts underlying the aggravating factor. The trial court imposed

an exceptional sentence of 120 months of incarceration.

       Hutton appeals, arguing that the trial court erred when it applied an incorrect

standard of proof to the facts underlying his exceptional sentence and when it

found that the victim asked for 120 months of incarceration. Because the trial court

did not apply an incorrect standard of proof and the trial court's finding that the

victim asked for an exceptional sentence of 120 months to be imposed was

supported by the record, we affirm.

                                      FACTS

       The State charged Hutton by amended information with two counts of

domestic violence felony violation of a court order, one count of felony stalking,

and one count of domestic violence telephone harassment. Hutton's felony
No. 75918-3-1 / 2

stalking charge included the aggravating factor that the offense was part of a

prolonged pattern of abuse.

       Hutton pleaded guilty to the charged offenses and the aggravating factor.

Hutton acknowledged that he was giving up several constitutional rights, that the

maximum sentence for one of his offenses was 10 years in prison and a $20,000

fine, that the trial court could impose a sentence up to the maximum, and that the

time could run consecutively because of the aggravating factor. The trial court

stated that Hutton had knowingly, voluntarily, and intelligently waived his trial rights

and entered a plea of guilty to his charged offenses.

       In Hutton's statement on his plea of guilty, Hutton wrote,"My conduct was

 part of a [sic] ongoing pattern of physical and psychological abuse of the same

victim manifested by multiple incidents over a prolonged period of time."'

       At Hutton's sentencing hearing, the State noted that the trial court had to

find the facts underlying the alleged aggravating factor before imposing an

exceptional sentence. The State requested an evidentiary hearing because Hutton

 had pleaded guilty to the aggravating factor but had not stipulated to its underlying

facts. The State contended that the trial court would apply a preponderance of the

evidence standard at the evidentiary hearing. The trial court granted the State's

 request for an evidentiary hearing to clarify the State's alleged aggravating factor

and the basis for an exceptional sentence.

        Following the trial court's statement that it would continue proceedings to

 allow the evidentiary hearing, Hutton stated that he had no objection to the trial



'Clerk's Papers(CP)at 25.
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No. 75918-3-1 / 3

court considering the offered evidence. The evidence included the victim's petition

in support of her request for a protection order and police reports from Arizona for

Hutton's prior offenses. Hutton stated that he was stipulating to those facts, and

that he understood that the victim had requested 120 months of incarceration and

that he was facing up to 10 years in prison. The State submitted copies of Hutton's

prior Arizona convictions to the trial court.

       The trial court considered these stipulated facts and concluded that the

record contained substantial evidence supporting the imposition of an exceptional

sentence based on the aggravating factor alleged by the State. The trial court

found that the victim was present at Hutton's sentencing and had asked the trial

court to impose an exceptional sentence of 120 months in prison. The trial court

rejected Hutton's request for a prison-based drug offender sentencing alternative

and imposed an exceptional sentence of 120 months.

       Hutton appeals.

                                      ANALYSIS

                                Exceptional Sentence

       Hutton argues that his stipulation is invalid because the trial court

misinformed him of the applicable standard of proof and applied an incorrect

standard of proof when it considered the facts underlying his exceptional sentence.

Because the trial court did not apply an erroneous standard of proof and Hutton's

stipulation was not otherwise invalid, we disagree.

       Generally, "the State must prove to the trier of fact, beyond a reasonable

doubt, facts supporting an exceptional sentence." State v. Pillatos, 159 Wn.2d


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No. 75918-3-1/4

456,466, 150 P.3d 1130(2007)(citing Blakely v. Washington, 542 U.S. 296, 313,

124 S. Ct. 2531, 159 L. Ed. 2d 403(2004)).

       When determining a sentence other than one above the standard range,

the trial court may not consider material facts disputed by the defendant unless an

evidentiary hearing is held and the facts are proven by a preponderance of the

evidence. RCW 9.94A.530(2). Where the trial court imposes a sentence above

the standard range and the defendant waives his or her right to a jury trial, the facts

underlying any aggravating factor must be proved "to the court beyond a

reasonable doubt, unless the defendant stipulates to the aggravating facts." RCW

9.94A.537(3).

       "Due process requires that a defendant's guilty plea be knowing, voluntary,

and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390

(2004)(citing Boykin V. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d

274 (1969)). A guilty plea is not knowing or voluntary if the defendant is given

misinformation about the sentencing consequences or is not fully advised of the

direct consequences of the guilty plea. In re Pers. Restraint of Fonesca, 132 Wn.

App.464,468, 132 P.3d 154(2006); State v. Ross, 129 Wn.2d 279, 284,916 P.2d

405 (1996).

       "The State bears the burden of establishing a valid waiver [of constitutional

rights], and absent a record to the contrary, this court indulges in every reasonable

presumption against waiver." State v. Cham, 165 Wn. App. 438, 447, 267 P.3d

528(2011).




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No. 75918-3-1 / 5

         Here, at Hutton's sentencing hearing, the State requested an evidentiary

hearing, at which the preponderance of the evidence standard would apply, to

establish the facts underlying the alleged aggravating factor. The trial court

granted the State's request so that the record could be clarified as to the State's

request for an exceptional sentence.

         Hutton is correct that the standard of proof at the evidentiary hearing for an

exceptional sentence should have been proof beyond a reasonable doubt. RCW

9.94A.537(3). But the trial court did not apply this standard of proof to evidence of

the facts underlying the aggravating factor. After the trial court's statement that it

would grant an evidentiary hearing, Hutton told the trial court that he did not object

to it entering the evidence. He acknowledged that he was stipulating to the facts

underlying the aggravating factor, and his defense counsel stated that "an

evidentiary hearing would not be necessary."2            Hutton's stipulation to the

underlying facts obviated the need for an,evidentiary hearing, and thus the trial

court did not apply any erroneous standard of proof to admit evidence of those

facts.

         Moreover, Hutton's stipulation was knowing, voluntary, and intelligent

despite the State's statement that the preponderance of the evidence standard

would apply at the evidentiary hearing. The trial court did not agree with the State

that the preponderance of the evidence standard would apply at the evidentiary

hearing. Further, the record does not indicate that Hutton stipulated to the

underlying facts in response to the State's argument. Hutton indicated that he did



2   Report of Proceedings(RP)(Sept. 30, 2016) at 45.
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No. 75918-3-1/6

not want an evidentiary hearing in part so that he could obtain mental health care

while incarcerated and to prevent the victim from going through another interview.

Finally, the misstatement of the applicable standard of proof did not concern

Hutton's sentence, and thus did not misinform Hutton of the sentencing

consequences of his stipulation and guilty plea. Thus, the State's argument that

the preponderance of the evidence standard would apply at a future evidentiary

hearing did not render Hutton's stipulation invalid.

        In sum, Hutton is correct that the facts underlying an exceptional sentence

must be proven beyond a reasonable doubt. But the trial court did not apply an

erroneous preponderance of the evidence standard in this case because of

Hutton's stipulation to the facts underlying the aggravating factor. And Hutton's

stipulation was not rendered invalid by the State's argument that the

preponderance of the evidence standard of proof would apply at a future

evidentiary hearing. We conclude that the trial court did not err and that Hutton's

stipulation was valid.

                                 Victim Statement

        Hutton argues that the trial court's finding that the victim asked for a

sentence of 120 months of incarceration at Hutton's sentencing hearing was not

supported by the record. Because the victim stated in a letter to the trial court that

Hutton should be sentenced to the"maximum term allowed by law"3 and requested




3 CP   at 163.
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No. 75918-3-1 /7

at Hutton's sentencing hearing that he should be in jail "for a long time," we

disagree.

       An appellate court may reverse an exceptional sentence if "the reasons

supplied by the sentencing court are not supported by the record which was before

the judge." RCW 9.94A.585(4)(a). The reviewing court analyzes whether the

reasons given by the sentencing judge are supported by evidence in the record

under a clearly erroneous standard. State v. Law, 154 Wn.2d 85, 93, 110 P.3d

717(2005)(quoting State v. Ha'mim, 132 Wn.2d 834, 840, 940 P.2d 633(1997)).

       Here, the trial court found that "[t]he victim . . . was present for this

sentencing and asked the court to impose an exceptional sentence of 120 months

in prison."5 In a letter to the trial court, the victim asked the trial court "to sentence

Michael Hutton for [her] protection and for his own to the maximum term allowed

by law."6 At Hutton's sentencing hearing, the victim stated that "[she] would like to

see him go to jail for a long time."7

       When considered together, the victim's statements to the trial court

supported its finding that she requested an exceptional sentence of 120 months in

prison.     As discussed above, the statutory maximum for Hutton's offenses,

including the aggravating factor, was 120 months. The victim requested that the

"maximum term allowed by law" be imposed in her letter to the trial court prior to

sentencing, and reiterated that Hutton should be incarcerated "for a long time" at

his hearing. We conclude that the fact that the victim did not specify the exact


"RP  (Sept. 30, 2016) at 49.
5 CP at 138.
6 CP at 163.
7 RP (Sept. 30, 2016) at 49.

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No. 75918-3-1/ 8

length of time of incarceration does not render the trial court's finding clearly

erroneous, and thus the record supports the trial court's finding.

                         Statement of Additional Grounds

       In a statement of additional grounds for review, Hutton argues that his first

public defender did not advise him of communications regarding a plea deal before

his case was transferred to another public defender. Hutton also argues that he

had multiple public defenders assigned to his case, and that the public defender

who represented him at sentencing had only been his counsel for eight days.

      "In the plea bargaining context, effective assistance of counsel means that

counsel actually and substantially assisted his client in deciding whether to plead

guilty." State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 (1981). "Without

specific allegations which would, if believed, demonstrate resulting prejudice, the

plea is not vitiated nor is a hearing on the plea's voluntariness warranted."

Cameron, 30 Wn. App. at 232 (noting that counsel is not ineffective based on

alleged infrequency and brevity of meetings with defendant).

       Here, Hutton has not demonstrated that his counsel below was ineffective.

His allegation that his first public defender did not inform him of discussions

regarding a plea agreement prior to transferring his case, taken as true, does not

demonstrate that he suffered resultant prejudice. For example, Hutton has not

argued that these discussions resulted in a longer sentence or that he would not

have otherwise pleaded guilty if the discussions had not occurred.

       Similarly, Hutton's contentions that he had at least four different public

defenders and that his counsel at sentencing had only been assigned to his case


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No. 75918-3-1/ 9

for eight days do not demonstrate that he received ineffective assistance of

counsel. Hutton has not argued that any of the public defenders assigned to his

case harmed his plea agreement negotiations or that he would not have pleaded

guilty absent their work on his case.

       In addition, Hutton has not demonstrated that he was prejudiced by his

counsel's performance at his sentencing hearing. In fact, the trial court was willing

to continue his case prior to holding an evidentiary hearing to allow his counsel to

have sufficient time to respond to the State's request. This continuance was

rendered unnecessary when Hutton, against the advice of his counsel, stipulated

to the facts underlying the aggravating factor. Thus,the length of time that Hutton's

counsel at sentencing represented him was reduced by Hutton's own actions, and

Hutton has not otherwise argued that his counsel's performance was ineffective.

       Therefore, we conclude that Hutton's arguments in his statement of

additional grounds for review do not merit reversing his exceptional sentence.

       Affirmed.


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WE CONCUR:




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