                                                                          FILED
                                                                      JANUARY 8, 2019
                                                                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. 35483-1-III
                      Respondent,              )
                                               )
        v.                                     )
                                               )
 DEBRA JEAN SHOEMAKER,                         )         UNPUBLISHED OPINION
                                               )
                      Appellant.               )

       SIDDOWAY, J. — Debra Shoemaker appeals the standard range sentence imposed

following her plea of guilty to burglary in the second degree and theft in the third degree.

She contends that the trial court denied her request for a drug offender sentencing

alternative (DOSA) after improperly considering adjudicative factual information from

victim representatives. Alternatively, she contends her trial lawyer provided ineffective

assistance of counsel when he failed to object to that information.
No. 35483-1-III
State v. Shoemaker


      The trial court did not err in allowing the victim representatives to speak at

sentencing and did not err by considering the unobjected-to information they provided.

We affirm.

                     FACTS AND PROCEDURAL BACKGROUND

      On January 24, 2016, a Wenatchee home was burglarized following a forced entry

through a garage man door. In addition to stealing personal property from inside the

home, the burglars left the scene in the homeowner’s Toyota Highlander. Almost six

months later, DNA1 from a latex glove recovered from inside the home was reported to

Chelan County law enforcement to be a match for Debra Shoemaker. A detective

arrested Ms. Shoemaker the next day. Upon being arrested, she told the detective that her

acquaintance, Cindy Simpson, “had set her up.” Clerk’s Papers (CP) at 1.

      Ms. Shoemaker was taken to the police station where she received Miranda2

warnings and agreed to a recorded interview. A probable cause affidavit filed with the

superior court summarized her statement as follows:

      Shoemaker admitted to breaking in to the residence through the side garage
      door. She said she and Cindy hit the door with their shoulders until it
      broke. She said they loaded items stolen from the residence into the
      victim’s vehicle. She then drove the vehicle to Cindy’s house where they
      unloaded the stuff. She claimed her motivation to commit the crime was
      because she felt sorry for Cindy because she was down or [sic] her luck and
      had been losing badly at gambling.


      1
          Deoxyribonucleic acid
      2
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             2
No. 35483-1-III
State v. Shoemaker


CP at 1.

       After booking Ms. Shoemaker, the detective arrested Cindy Simpson. In his

probable cause affidavit in Ms. Shoemaker’s case, the detective described Ms. Simpson

as very uncooperative. According to his affidavit, Ms. Simpson “screamed at me that

‘Debbie had set her up! I never robbed in [sic] house![’”] CP at 2. Both women were

charged with residential burglary, vehicle theft, malicious mischief, and third degree

theft. Ms. Shoemaker was additionally charged with possession of methamphetamine

found in her purse when she was searched incident to arrest.

       Ms. Shoemaker engaged in plea negotiations, and the State eventually offered to

dismiss the malicious mischief, vehicle theft, and possession of methamphetamine

charges so that her standard range would qualify her for a residential DOSA. In her

statement on plea of guilty, she provided the following statement of facts making her

guilty of the crimes:

       On January 24, 2016, in the City of Wenatchee, County of Chelan, I
       entered the house of another individual without permission with Cindy
       Simpson to take prescription pills for Cindy to sell. Cindy also packed a
       duffle bag with personal belongings of the residents. I carried the duffle
       bag out of the house and into the car. I knew Cindy would try to sell those
       items value less than $750.00.

CP at 45.




                                             3
No. 35483-1-III
State v. Shoemaker


          The trial court accepted Ms. Shoemaker’s guilty plea at a hearing on April 3,

2017. At that time, there was further discussion about the nature and value of what was

stolen:

                 THE COURT: Now, I understand, though, the value maybe is more
          than $750 and you’re agreeing to pay restitution on whatever is proven; is
          that correct?
                 THE DEFENDANT: Yes.
                 THE COURT: Okay. And I don’t—I don’t know actually what was
          taken.
                 [PROSECUTOR]: It was primarily jewelry belonging to [the
          victim’s] deceased wife; is that correct?
                 [DEFENSE COUNSEL]: And there was other—other memorabilia,
          Your Honor.
                 THE COURT: So the value of those may be over or under $750, but
          we’re going to expect you to pay restitution on whatever is proven or
          agreed to. Do you understand that?
                 THE DEFENDANT: I do.
                 THE COURT: All right.

Report of Proceedings (RP) (Apr. 3, 2017) at 21-22. At the time the plea was accepted,

there was discussion that sentencing would not take place until June because the victim’s

family wanted to be present for sentencing and would be unavailable in May.

          The sentencing ultimately took place on July 17. RP (July 17, 2017) at 2. At the

outset of the hearing, the prosecutor explained that the State was recommending the

agreed DOSA as the correct sentence but stated, “[T]he family, I understand does feel

differently, and they would like to have a chance to speak.” Id. at 6. The court

responded, “Maybe I should hear next from the family so that [defense counsel] and Ms.

Shoemaker have the benefit of those comments when they address the court.” Id.

                                               4
No. 35483-1-III
State v. Shoemaker


      George Harmon was the homeowner and victim of the burglary and was present at

sentencing. But also present and prepared to speak on his behalf were Steve Myers, a

friend of the Harmon family, and Mr. Harmon’s grandson, Mike Rollins. Mr. Myers

prefaced his comments by stating that he had been working on the case for “some

eighteen months” and wanted to give the court “a further appreciation of the crime.” Id.

at 7.3 He then conveyed the following information:

       On December 5, 2015, Ella Harmon, Mr. Harmon’s wife of 63 years, had

          died.

       On January 17, 2016, Mr. Harmon left Wenatchee to visit family in

          Portland “to deal with the death of his wife and to sort of get through it.”

          Id. at 9.

       Ms. Shoemaker learned that Mr. Harmon’s wife had died and that Mr.

          Harmon would be away from home because Ms. Shoemaker’s husband

          was in a carpool with one of Mr. Harmon’s relatives.

       A private investigator obtained video that showed Ms. Shoemaker with

          Ms. Simpson inside a convenience store, making three phone calls to the




      3
        Mr. Myers informed the court that he was a lawyer, but was speaking for the
family as a friend.

                                             5
No. 35483-1-III
State v. Shoemaker


         Harmon home at 3:30 a.m. on the morning of the burglary, information

         Mr. Myers characterized as “all uncontroverted essentially.” Id. at 11.

       After confirming that Mr. Harmon was gone, Ms. Shoemaker and Ms.

         Simpson traveled to his home where they took “virtually all the

         mementos—heirlooms, jewelry, clothing—that belonged to his wife,”

         including what Mr. Myers described as “his-and-her” jewelry items that

         Mr. Harmon and his wife had exchanged as gifts “on anniversaries and

         birthdays and whatnot.” Id.

       Mr. Myers told the court that the family had been “desperately trying to

         find where the goods are, the very most important thing to George

         Harmon,” and that they had spoken with Ms. Shoemaker “trying to get

         leads” but she consistently denied any knowledge of the disposition of the

         stolen property other than that it had been in the possession of Ms.

         Simpson. Id.

       He characterized the burglary as carefully planned, pointing to the clothing

         the women wore when captured by the convenience store video, the fact

         that they were prepared to “crack[ a] double bolted garage door frame,”

         and the fact that upon leaving the car they had disassembled the fob and

         wiped everything down so that no electronic memory or fingerprints would

         be left behind. Id. at 12.

                                           6
No. 35483-1-III
State v. Shoemaker


Mr. Myers concluded by stating, “I can say with some certainty the family respectfully

requests that the Court sentence her, Debbie Shoemaker, to a prison term that takes into

account the extraordinary circumstances.” Id. at 15. At no point when Mr. Myers was

recounting this information did Ms. Shoemaker object or contend that some different

evidentiary hearing was required.

       The court next heard from Mr. Harmon’s grandson, Mike Rollins, who stated:

       I just want the Court to get an idea of who George Harmon is. He’s a
       Korean War veteran. The one thing that defined my grandfather was his
       love for my grandmother. All of that was taken from him on that night.
       She had already passed away, but they took every memento that meant so
       much to my grandfather. It’s probably one of the coldest things that I’ve
       ever witnessed.
               Since that time, his health has deteriorated. He had shingles right
       after. He had a stroke. He’s not living in his house. He wasn’t even—he
       didn’t feel secure enough to even stay at his own home. He stayed with my
       parents and lived there because he was scared to go home.
               I just ask, your Honor, that you take all that into consideration
       because I feel like the sentencing needs to be pretty harsh for this—for this
       act.

Id. at 16. Again, Ms. Shoemaker did not object or suggest that the court should

conduct a separate evidentiary hearing.

       The court then invited Ms. Shoemaker’s lawyer to speak. While he told the court

that Ms. Shoemaker had been “very upfront and honest with me about what took place”

and he believed Ms. Shoemaker told the family as much as she knew about the stolen

property, he did not dispute the facts that had been recounted by Mr. Myers or Mr.

Rollins. Id.

                                             7
No. 35483-1-III
State v. Shoemaker


       After hearing from a psychiatric nurse practitioner who had treated Ms.

Shoemaker and spoke in favor of the DOSA, the court stated, “All right. Ms. Shoemaker,

you have the opportunity to address the Court. What would you like to say today?” Id. at

20. Ms. Shoemaker read aloud a letter she had written to the Harmon family apologizing

for “the senseless things I did” and “all the fear that you had because of this.” Id. She

read, “I did this to your family and you, and no one deserves that.” Id. at 20-21. After

explaining that she had fallen into gambling and drugs, she read, “I know that doesn’t

seem like an excuse for my action and the choice I made that night to rob their house—or

his house.” Id. at 21. She read, “I take full responsibility.” Id. She read, “I just want

you to know how deeply sorry I am for what I did and want you to know I tried to get all

your things back but wasn’t able to.” Id. at 22. She said nothing that diminished her role

in the burglary and theft and did not dispute any of the information related by Mr. Myers

or Mr. Rollins.

       After taking a break so that defense counsel could provide an agreed criminal

history, the court reconvened the sentencing, stated that the signed criminal history would

be filed, and then said, “Okay. Did everybody get to say everything they wanted to say?”

Id. at 27. Only the prosecutor responded, stating, “Yes, your honor.” Id.

       The court then began to announce its sentencing decision, expressing sympathy for

Mr. Harmon. When the court, addressing Ms. Shoemaker, stated, “It appears to the Court

. . . that this was a very calculated crime,” Ms. Shoemaker asked to “explain something.”

                                             8
No. 35483-1-III
State v. Shoemaker


Id. at 29. The court listened as Ms. Shoemaker offered excuses as to why Mr. Harmon’s

inability to recover the stolen property was not her fault, but the court was not impressed.

Through questioning of Ms. Shoemaker, the court confirmed that Ms. Shoemaker—who

claimed to have had immediate remorse for the crime—knew where the police station

was located and could have reported the crime the morning after it occurred, but did not.

Told by a Harmon family representative that Ms. Shoemaker never provided timely

information identifying any of the people involved, the court stated, “All right. That’s

what I wanted to know.” Id. at 33. Addressing Ms. Shoemaker, the court continued:

       [I]t’s easy, Ms. Shoemaker, to be sorry when you’re standing here before
       the Court. The time to have been sorry and to have taken action would
       have been back on January 24th or 25th . . . or 26th when the police could
       have gone to Ms. Simpson’s house and retrieved some of these special and
       significant items that were taken.

Id. The court refused to impose a residential DOSA and instead sentenced Ms.

Shoemaker to the high end of the standard range.

       Ms. Shoemaker appeals.

                                       ANALYSIS

       Ms. Shoemaker makes three assignments of error, two of which require analysis.4

She contends (1) the trial court erred by allowing victim representatives to present


       4
        Ms. Shoemaker’s third assignment of error raises an appearance of fairness
concern. Because it is based solely on the sentencing court’s consideration of
information we find the court was entitled to consider, and seeks only reassignment in the
event of remand, we need not address it.

                                             9
No. 35483-1-III
State v. Shoemaker


adjudicative facts at the sentencing hearing and by considering those facts in imposing

sentence, and (2) her trial lawyer provided ineffective assistance when he did not object

to the victim’s representatives’ presentation of information. We address the contentions

in the order stated.

I.     THE SENTENCING COURT DID NOT ERR BY HEARING FROM VICTIM
       REPRESENTATIVES AND RELYING ON THE INFORMATION THEY PROVIDED

       Generally, a court’s decision to impose a standard range sentence is not

appealable. State v. Conners, 90 Wn. App. 48, 51, 950 P.2d 519 (1998). But a defendant

may appeal the trial court’s failure to follow a required procedure. State v. Ammons, 105

Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986). Ms. Shoemaker argues that the trial

court violated required procedure by allowing victim representatives to provide evidence

and by considering the evidence they presented in imposing sentence.

       Article I, section 35 of the Washington Constitution grants certain “basic and

fundamental rights” to victims of crime, including the right to “attend trial and all other

court proceedings the defendant has the right to attend, and to make a statement at

sentencing . . . subject to the same rules of procedure which govern the defendant’s

rights.” If the victim is unavailable for any reason, the prosecutor may identify a

representative to exercise the victim’s right. Id.; see RCW 7.69.030(14) (victim has the

right “to present a statement personally or by representation, at the sentencing hearing for

felony convictions”). Given the amendment’s “clear wording,” the Washington Supreme



                                             10
No. 35483-1-III
State v. Shoemaker


Court has construed it as giving victims the right to make a statement at sentencing

“unless there is a direct constitutional impediment.” State v. Gentry, 125 Wn.2d 570,

628-29, 888 P.2d 1105 (1995).

       A corollary provision requires the sentencing court to consider “arguments from

. . . the victim . . . as to the sentence to be imposed.” RCW 9.94A.500(1). The provision

has been described as “provid[ing] for ‘a baseline—a minimum amount of information

which, if available and offered, must be considered in sentencing.’” State v. Sanchez,

146 Wn.2d 339, 353, 46 P.3d 774 (2002) (quoting State v. Mail, 121 Wn.2d 707, 711,

854 P.2d 1042 (1993)). In State v. Lindahl, this court, broadly viewing a sentencing

court’s discretion to consider information about the defendant and a crime, rejected an

argument that the lawyer for a victim should not have been allowed to file a sentencing

memorandum and argue in favor of an exceptional sentence upward. 114 Wn. App. 1,

14-15, 56 P.3d 589 (2002).

       Ms. Shoemaker cites State v. A.W., 181 Wn. App. 400, 411, 326 P.2d 737 (2014),

as authority for the proposition that victims are not allowed to present evidence at

sentencing, but that case is inapposite. In A.W., a victim sought to intervene as a party

and make a motion for court-ordered relief. Mr. Harmon’s representatives did neither.

       Since no constitutional impediment is shown, a victim making a statement at

sentencing has as much right to present evidence as do other participants.



                                             11
No. 35483-1-III
State v. Shoemaker


       A provision of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,

does impose limitations on sources the sentencing court may rely on; it is currently

codified as RCW 9.94A.530(2). Sanchez, 146 Wn.2d at 353 (citing former RCW

9.94A.370(2) (2000)). It provides in relevant part:

       In determining any sentence other than a sentence above the standard range,
       the trial court may rely on no more information than is admitted by the plea
       agreement, or admitted, acknowledged, or proved in a trial or at the time of
       sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgment
       includes not objecting to information stated in the presentence reports and
       not objecting to criminal history presented at the time of sentencing.

RCW 9.94A.530(2) (emphasis added).

       Our Supreme Court has held that the language used in RCW 9.94A.530(2) “clearly

demonstrates that a sentencing court may rely on . . . something less than the usual

adversarial process (‘information . . . admitted, acknowledged, or proved . . .’).” State v.

Handley, 115 Wn.2d 275, 281, 796 P.2d 1266 (1990) (some alterations in original)

(discussing former RCW 9.94A.370(2)). “Furthermore, ‘a sentencing judge is not limited

to consideration of facts that would be admissible at trial.” Id. (quoting State v. Herzog,

112 Wn.2d 419, 430, 771 P.2d 739 (1989)). Evidence rules do not apply to a sentencing

hearing. ER 1101(c)(3).

       Mr. Myers explained to the court that Mr. Harmon’s family had engaged a private

investigator and that he was recounting what he had learned from his year and a half

involvement in Ms. Shoemaker’s prosecution. There is no reason to find his information


                                             12
No. 35483-1-III
State v. Shoemaker


any less reliable than the information the court sought or received from others during the

sentencing hearing. Given the relaxed process for providing information to a sentencing

court (other than criminal history information, discussed below), Mr. Myers and Mr.

Rollins can be said to have “proved . . . at the time of sentencing” the facts they stated to

the court. RCW 9.94A.530(2).

        The SRA also provides that “if no objection is raised to the information presented

or considered during sentencing, then that information is considered ‘acknowledged’”

State v. Mail, 121 Wn.2d at 712 (quoting former RCW 9.94A.370(2)) (defendant failed to

object to facts identified by sentencing court as having come from a prior conviction file);

accord State v. Grayson, 154 Wn.2d 333, 339, 111 P.3d 1183 (2005) (“‘Acknowledged’

facts include all those facts presented or considered during sentencing that are not

objected to by the parties.”). “In order to challenge the information, the objection must

be both timely and specific.” Mail, 121 Wn.2d at 712 (citing Handley, 115 Wn.2d at

283).

        It is only “where a defendant raises a timely and specific objection to sentencing

facts” that the court “must either not consider the fact or hold an evidentiary hearing.”

Grayson, 154 Wn.2d at 339. Dicta in Grayson mused that a party might be excused for

failing to make a timely, specific objection if a sentencing court abruptly and

categorically foreclosed discussion of an adjudicative fact. But the Grayson court



                                             13
No. 35483-1-III
State v. Shoemaker


declined to hold as much, adding, “The best practice is to promptly object.” Id. at 341

(citing Mail, 121 Wn.2d at 712).

       Ms. Shoemaker voiced no objection to the information provided by Mr. Myers and

Mr. Rollins, nor did she request a separate evidentiary hearing.

       Ms. Shoemaker’s final argument related to this assignment of error is that the

sentencing court relied on untested facts in violation of her right to due process, citing

State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999). Ford deals with information about

criminal history—a type of sentencing information that gets unique treatment, since the

State must prove a defendant’s criminal history by a preponderance of the evidence. Id.

at 479-80. In Ford, the State provided literally no information on the basis of which the

sentencing court could classify a defendant’s out-of-state convictions. The Supreme

Court observed that to calculate an offender score, the court is required to classify out-of-

state convictions, something it cannot do in the complete absence of underlying

information. Id. at 479. It analyzed the classification of crimes as a conclusion of the

court, necessarily based on facts. Id. at 483. It was “the admitted lack of any evidence

supporting classification” that Ford found to fall below even the minimum requirements

of due process. Id. at 481 (emphasis added).

       Ford not only did not question well-settled Washington case law that

unchallenged facts are acknowledged and can be relied on by a sentencing court, it

restated that law itself:

                                             14
No. 35483-1-III
State v. Shoemaker


       While unchallenged facts and information are acknowledged by the
       defendant and may be properly relied upon by the court to support a
       determination of classification, under the statutory scheme classification of
       out-of-state convictions is a process unto itself, entirely distinct from the
       acknowledged existence of any fact which informs the court’s conclusions.

Id. at 483.5

       The trial court did not err in allowing Mr. Myers and Mr. Rollins to speak or by

taking into consideration the information they provided—information that Ms.

Shoemaker acknowledged, given her failure to object or request a separate evidentiary

hearing.

II.    INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT SHOWN

       Effective assistance of counsel is guaranteed by both the Sixth Amendment to the

United States Constitution and article I, section 22 of the Washington Constitution.



       5
        This court’s opinion in State v. Mendoza, 139 Wn. App. 693, 708, 162 P.3d 439
(2007), which the Supreme Court affirmed, 165 Wn.2d 913, 205 P.3d 113 (2009),
addresses the fact that the requirement for a criminal defendant’s affirmative
acknowledgement of criminal history information does not apply to other information
provided at sentencing:
               For clarification, we note that our holding is limited solely to proof
       of prior convictions for the purpose of calculating offender scores and not
       to the other types of evidence that a trial court can consider during
       sentencing. CrR 7.1 and RCW 9.94A.500 provide that the trial court can
       allow argument from the prosecutor, the defense counsel, the offender, the
       victim, the survivor of the victim, or a representative of the victim or
       survivor, and an investigative law enforcement officer, as well as the
       submission of documents other than those provided by the [Department of
       Corrections]. But neither allows these arguments to supplant the State’s
       burden to prove criminal history by a preponderance of the evidence.

                                             15
No. 35483-1-III
State v. Shoemaker


Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective

assistance of counsel, a defendant must show two things: “(1) defense counsel’s

representation was deficient, i.e., it fell below an objective standard of reasonableness

based on consideration of all the circumstances; and (2) defense counsel’s deficient

representation prejudiced the defendant, i.e., there is a reasonable probability that, except

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (emphasis

omitted). A failure to make either showing is fatal to an ineffective assistance of counsel

claim. Strickland, 466 U.S. at 700.

       Analysis of a claim of ineffective performance begins with a strong presumption

that counsel’s performance was reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215

P.3d 177 (2009). A defendant must show the absence of legitimate strategic or tactical

reasons supporting the challenged conduct. State v. Reichenbach, 153 Wn.2d 126, 130,

101 P.3d 80 (2004).

       Ms. Shoemaker contends that her trial lawyer provided ineffective assistance by

failing to object to the information provided by Mr. Myers and Mr. Rollins. She is

unable to show that this was deficient representation or that it prejudiced her. Had her

trial lawyer objected and requested an evidentiary hearing, the sentencing court would

likely have conducted the hearing on the spot. Mr. Myers and Mr. Rollins evidently had

                                             16
No. 35483-1-III
State v. Shoemaker


personal knowledge of much of what they said, and the court could consider hearsay. If

other witnesses’ testimony was required, Ms. Shoemaker’s lawyer might well have

believed that the family could prove everything the victim representatives had stated.

Ms. Shoemaker had already had the chance to tell her side of the story and made

numerous admissions in the letter she read to the court. On the few and likely immaterial

facts she disputed, her lawyer might have concluded that he had no other witness who

could back her up.

       For the same reason, Ms. Shoemaker cannot show prejudice. She can point to

nothing in the record that suggests an objection or request for an evidentiary hearing

would have led to a more favorable sentencing outcome.

       Ms. Shoemaker has moved the panel to exercise its discretion to waive costs on

appeal. Under RAP 14.2, “[a] commissioner or clerk of the appellate court will award

costs to the party that substantially prevails on review, unless the appellate court directs

otherwise in its decision terminating review.”

       In order for the panel to exercise informed discretion, a general order of this

division requires an appellant to request waiver of costs on appeal in his or her opening

brief or by a motion filed and served within 60 days following the filing of the opening

brief. See Gen. Order of Division III, In re the Matter of Court Administration Order re:

Request to Deny Cost Award (Wash. Ct. App. June 10, 2016), https://www.courts.wa

.gov/appellate_trial_courts. If the appellant is alleging inability to pay, he or she is

                                              17
No. 35483-1-III
State v. Shoemaker


required by the general order to provide the trial court's indigency report and a report as

to continued indigency and likely future inability to pay. Id.

       Ms. Shoemaker complied with our general order. Based on the information

provided, we decline to award the State costs on appeal.

       The sentence is affirmed.

       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.




I CONCUR:



 Q.
Pennell, A.CJ.




                                             18
                                    No. 35483-1-III

      FEARING, J. (dissenting) — I conclude that, at a minimum, Debra Shoemaker

disputed some facts during her sentencing hearing. The law does not readily

resolve whether she acknowledged other facts. Based on the dispute of facts, if not

unacknowledged facts, the sentencing court possessed an affirmative obligation to

conduct an evidentiary hearing regardless of whether Shoemaker requested an

evidentiary hearing. The procedure followed by the sentencing court did not entail

an evidentiary hearing. Thus, I would remand for a new sentencing hearing.

      I begin with more of the background behind the sentencing of Debra Shoemaker.

One month after the State filed charges against Debra Shoemaker, Trevor Travers, a

licensed psychologist at Eastern State Hospital, interviewed Shoemaker, then age fifty-

four years, and reviewed police reports, medical records, and Western State Hospital

records. Shoemaker experienced a long history of drug abuse and physical cruelty.

Travers diagnosed Shoemaker with possible bipolar disorder, polysubstance use disorder,

borderline personality features, and posttraumatic stress disorder. The psychologist
No. 35483-1-III
State v. Shoemaker (dissent)


opined that Shoemaker should be evaluated by a designated mental health provider due to

her self-injurious behavior and borderline personality features.

       During plea negotiations, the State graciously offered to dismiss malicious

mischief, vehicle theft, and possession of methamphetamine charges so that Shoemaker

would qualify for a drug offender sentencing alternative (DOSA). The State agreed to

recommend to the sentencing court the alternative sentence.

       The State of Washington filed an amended information wherein it lowered the

charge of residential burglary to burglary in the second degree and omitted all other

charges except the third degree theft. This reduction in charges lowered the range of

confinement from between forty-three and fifty-seven months to between seventeen and

twenty-two months. A treatment facility and the Department of Corrections screened

Shoemaker and found her eligible for a DOSA sentence based on her strong urges for

controlled substances, her preoccupation with drugs, and her neglect of other activities.

Shoemaker registered for treatment beginning immediately after her scheduled

sentencing hearing.

       The trial court conducted a sentencing hearing. During the hearing, the State

recommended a residential DOSA sentence with twenty-four months community custody

for the second degree burglary charge and a suspended jail sentence for the third degree

theft charge. The State commented that the crime stemmed from a combination of



                                                2
No. 35483-1-III
State v. Shoemaker (dissent)


chemical dependency and mental illness and, based on these factors, the State deemed the

DOSA to be the best sentence for Debra Shoemaker.

       Victim George Harmon attended the sentencing hearing. During the hearing, the

trial court allowed Steve Myers, a friend of George Harmon’s grandson, to speak on

Harmon’s behalf. Myers is a licensed attorney in Oregon, but not in Washington. Myers

asserted at the hearing that he did not legally represent George Harmon but represented

Harmon and his family as a friend. Nevertheless, the State concedes that Harmon paid

Myers tens of thousands of dollars for his services.

       During his presentation at the sentencing hearing, Steve Myers presented

information concerning the crimes not embedded in the affidavit of probable cause or in

Deborah Shoemaker’s statement on plea of guilty. When rendering the judgment and

sentence, the sentencing court acknowledged that the court record lacked information

provided by Myers. Myers told the court that for the last eighteen months, with the help

of a private investigator, he had reconstructed the crime and its aftermath.

       Steve Myers commented that George Harmon’s wife of sixty-three years died

December 5, 2015. According to Myers, Harmon left his Wenatchee home on January

17, 2016, to visit family in Portland, Oregon, in order to cope with his wife’s death.

Harmon celebrated his eighty-sixth birthday on January 23, the day before the burglary.

Debra Shoemaker’s husband participated in a car sharing arrangement with one of

George Harmon’s relatives, and the husband learned that Harmon would temporarily

                                                 3
No. 35483-1-III
State v. Shoemaker (dissent)


vacate his residence. Myers asserted, during the sentencing hearing, that Shoemaker and

her cohort Cindy Simpson devised a plan to enter the residence during Harmon’s

absence.

       Steve Myers argued that, based on his investigation, Debra Shoemaker and Cindy

Simpson took one car to George Harmon’s residence because of an intent to also steal

Harmon’s car. The pair took a crowbar and cracked the double bolted garage door frame

in order to enter the home. He added that the two placed “virtually all . . . [of Harmon’s]

mementos—heirlooms, jewelry, clothing—that belonged to his wife including . . . his-

and-her watches, his-and-hers diamond rings.” Report of Proceedings (RP) (July 17,

2017) at 11. The thieving couple also lifted a file that contained important documents,

including George Harmon’s wife’s death certificate and documents containing

identifying information for the wife. The two also stole Harmon’s car.

       Steve Myers declared that Debra Shoemaker and Cindy Simpson abandoned

George Harmon’s car in a park. In the meantime, the duo vacuumed and wiped the car to

erase fingerprints and dissembled the fob. The disassembling of the fob might prevent

another from retrieving information as to the travel pattern of the car.

       Steve Myers next described the mementos as “really important” to George

Harmon. RP (July 17, 2017) at 12. The family, in turn, desperately sought to recover the

heirlooms. The family spoke to Debra Shoemaker in the prosecutor’s office and inquired

as to the location of the personal property. According to Myers, when questioned, Debra

                                                 4
No. 35483-1-III
State v. Shoemaker (dissent)


Shoemaker denied knowledge of the whereabouts of the belongings. Shoemaker claimed

she last saw the belongings in the duffel bag when Cindy Simpson toted the bag into her

home. By the time of the sentencing hearing, George Harmon had not recovered any

stolen objects, including his wife’s death certificate.

       Steve Myers ended his comments, during the sentencing hearing, by emphasizing

the “depraved” nature of Shoemaker’s conduct and the magnitude of the impact of the

crime on George Harmon and his family. RP (July 17, 2017) at 15. Myers asked that the

sentencing court decline a DOSA sentence and impose a prison term that accounts for the

“extraordinary circumstances” of the crime. RP (July 17, 2017) at 15. Myers stated

George Harmon steadfastly desired Shoemaker in prison.

       Next, during the sentencing hearing, Mike Rollins, grandson of George Harmon,

addressed the court. According to Rollins, Cindy Simpson and Debra Shoemaker took

every memento of the grandmother, all invaluable to Harmon. Rollins portrayed the

action of Shoemaker and Simpson as “one of the coldest things I’ve ever witnessed.” RP

(July 17, 2017) at 16. Rollins pleaded for a harsh sentence against Debra Shoemaker.

       During the sentencing hearing, Debra Shoemaker’s defense attorney presented

facts diverging from the facts and views presented by Steve Myers. Defense counsel

stated that Shoemaker had shown candor in describing events. Counsel insisted that

someone else returned to George Harmon’s home after Cindy Simpson and Debra

Shoemaker left the home and stole additional property. In other words, according to

                                                  5
No. 35483-1-III
State v. Shoemaker (dissent)


counsel, Shoemaker did not pilfer all of the items claimed stolen by George Harmon.

Counsel knew of this additional thieving because of information provided by George

Harmon and his family during talks with Debra Shoemaker and counsel. According to

counsel, Debra Shoemaker also told Cindy Simpson to return some of the stolen objects.

       Defense counsel explained, during the sentencing hearing, that Debra Shoemaker

suffered from a mental illness and that she self-medicates to negotiate the illness.

According to counsel, Shoemaker “ping-pongs” from thought to thought during

conversations. RP (July 17, 2017) at 17. Counsel requested the sentencing court grant

Shoemaker a residential DOSA sentence.

       Sharon Clifner, Debra Shoemaker’s psychiatric nurse practitioner, also spoke on

Shoemaker’s behalf and wrote a letter to the court. In her letter, Clifner related concerns

for Shoemaker’s safety at home because of domestic violence committed by her husband.

Clifner noted that Shoemaker’s husband broke Shoemaker’s arm in a fight the previous

year. Because of the domestic violence, Shoemaker felt unsafe at home. Clifner reported

the insecurity drove Shoemaker’s desire to spend time away from the home, which turned

Shoemaker to gambling.

       At the sentencing hearing, Sharon Clifner addressed Debra Shoemaker’s mental

illness and the value of a DOSA sentence. Clifner stressed Shoemaker’s instability and

need to begin another medication regimen. Clifner reasoned that a DOSA sentence



                                                 6
No. 35483-1-III
State v. Shoemaker (dissent)


would place Shoemaker in a safe treatment program that would resolve underlying

mental health issues that contributed to the crime.

       Debra Shoemaker began her allocution, during the sentencing hearing, by

apologizing to George Harmon and his family for her senseless actions and the fear she

caused. At the same time, Shoemaker denied taking any personal property from the

Harmon residence. Shoemaker acknowledged her mental health illness, excessive

gambling, poor choice of friends, use of controlled substances, and her need for

treatment. She promised to seriously engage in treatment. Shoemaker added that she

already treated with a therapist and took prescribed medications. She accepted full

responsibility for her actions and stated that she did not wish to render bad choices again.

       When issuing its sentence, the sentencing court emphasized the compelling

circumstances of the crime and the impact on George Harmon as based on the details

provided by Steve Myers and Mike Rollins. When the court commented that Debra

Shoemaker and Cindy Simpson took mementoes of George Harmon and his deceased

wife, Debra Shoemaker interrupted the court and the two engaged in a colloquy.

Shoemaker stressed that she begged Cindy Simpson to return property to George

Harmon, after which Simpson expelled Shoemaker from Simpson’s residence. When the

sentencing court remarked that Shoemaker took no steps to assist the Harmons in

regaining possessions, Shoemaker claimed she assisted the Harmon family in locating

heirlooms. The sentencing court asked Shoemaker why Shoemaker had not reported the

                                                 7
No. 35483-1-III
State v. Shoemaker (dissent)


theft to the police when Simpson refused to return the property. Shoemaker explained

that she purchased a $4.99 phone to report that Simpson intended to sell the car. She then

anonymously phoned the police and reported the location of the stolen car. Her call led

to the retrieval of the car. A representative of George Harmon confirmed that an

anonymous call resulted in the location of the car, although not any personal items.

       RCW 9.94A.530(2) controls this appeal and dictates whether the trial court

should have conducted an evidentiary hearing during sentencing. The statutory

section reads:

               In determining any sentence other than a sentence above the
       standard range, the trial court may rely on no more information than is
       admitted by the plea agreement, or admitted, acknowledged, or proved
       in a trial or at the time of sentencing, or proven pursuant to RCW
       9.94A.537. Acknowledgment includes not objecting to information
       stated in the presentence reports and not objecting to criminal history
       presented at the time of sentencing. Where the defendant disputes
       material facts, the court must either not consider the fact or grant an
       evidentiary hearing on the point. The facts shall be deemed proved at
       the hearing by a preponderance of the evidence, except as otherwise
       specified in RCW 9.94A.537.

(Boldface omitted.)

       Pursuant to RCW 9.94A.530(2), a court may only consider facts admitted or

acknowledged by a defendant or proved at trial in determining her sentence. State

v. Talley, 83 Wn. App. 750, 756, 923 P.2d 721 (1996), aff’d, 134 Wn.2d 176, 949

P.2d 358 (1998). If a defendant disputes any material facts on which the court

                                                8
No. 35483-1-III
State v. Shoemaker (dissent)


intends to rely, the sentencing court can either disregard the disputed facts or

require the State to prove them by a preponderance of the evidence at a hearing for

this purpose. State v. Talley, 83 Wn. App. at 756. When the defendant disputes a

material fact, the court must grant an “evidentiary hearing” on the disputed points.

State v. Talley, 83 Wn. App. at 757. The sentencing court should not punish the

defendant based on facts not proven. State v. Talley, 83 Wn. App. at 757.

      Under RCW 9.94A.530(2), a precondition to an evidentiary hearing is the

defendant’s dispute of facts or failure to acknowledge facts presented as part of the

sentencing procedure. I distinguish between expressly disputing facts and failing

to acknowledge facts and address the former first.

      Steve Myers, the Oregon attorney, expressly or by strong implication,

declared that Debra Shoemaker stole all objects missing from George Harmon’s

home. Mike Rollins, grandson of George Harmon, declared that Debra Shoemaker

took every memento of the grandmother. The sentencing court commented that

Debra Shoemaker took all the mementos. Steve Myers added that Shoemaker

participated in vacuuming and wiping the car to erase fingerprints and contributed

to dissembling the car’s key fob so that law enforcement could not discern the

stolen car’s travel pattern. Myers strongly implied that Shoemaker failed to


                                              9
No. 35483-1-III
State v. Shoemaker (dissent)


cooperate, if not lied, when Shoemaker denied the current whereabouts of George

Harmon’s belongings. Debra Shoemaker’s defense attorney and Debra Shoemaker

disputed all of these facts and views presented by Steve Myers and Mike Rollins.

      George Harmon’s representatives and Debra Shoemaker also disagreed as to

whether Shoemaker exerted any effort to help reclaim some of the stolen property.

The sentencing court likely adopted George Harmon’s rendition of the facts

regarding cooperation. The State may consider the sentencing court’s view that

Debra Shoemaker failed to cooperate more of a value judgment, than a finding of

fact. I disagree. Whether or not one cooperates involves a fact, just as one’s intent

to commit a crime constitutes an issue of fact for a jury.

      RCW 9.94A.530(2) allows the sentencing court to rely on information found

in the statement on plea of guilt. The State mentions that Debra Shoemaker, in her

statement on plea of guilty, agreed that she stole all items missing from George

Harmon’s residence. I disagree. Shoemaker agreed that she stole items valued at

less than $750. The statement does not declare that she took all items claimed

stolen by George Harmon, Harmon’s family, and Harmon’s Oregon lawyer.

      The State argues that Debra Shoemaker did not dispute any facts presented

by Steve Myers and Mike Rollins, but rather disputed inferences to be drawn from


                                             10
No. 35483-1-III
State v. Shoemaker (dissent)


those facts. According to the State, Shoemaker and George Harmon’s

representatives disagreed as to the value to place on evidence. As shown above,

Shoemaker disputed facts, not simply inferences to draw from the facts. Anyway,

inferences from undisputed facts are as important as the underlying facts as

illustrated by the summary judgment rule that the trial court must deny a summary

judgment motion and permit the civil case to go to trial if different inferences may

be drawn from the undisputed facts.

      Since I conclude that Debra Shoemaker disputed facts presented by George

Harmon’s representatives at the sentencing hearing, I need not decide whether

Debra Shoemaker failed to acknowledge other facts presented by Harmon’s

representatives. I note, however, that Shoemaker never expressly acknowledged a

host of factual allegations forwarded by Steve Myers and Mike Rollins.

      RCW 9.94A.530(2) and case law distinguish between what facts the

offender acknowledges when she presents no countervailing facts but does not

expressly object to facts presented by the State or the victim. Information

contained in a presentence report and criminal history lies in one category. Under

the statute, acknowledgment includes not objecting to information stated in the

presentence reports. State v. Talley, 83 Wn. App. at 757. Nevertheless, Debra


                                            11
No. 35483-1-III
State v. Shoemaker (dissent)


Shoemaker’s appeal involves no presentence report or criminal history.

      Because RCW 9.94A.530(2) omits reference to facts other than information

found in the criminal history and those facts contained in the presentence report, I

conclude that silence of Debra Shoemaker in response to comments by Mike

Rollins and Steve Myers did not constitute an acknowledgment of facts contained

in the remarks. In State v. Talley, this court held that the sentencing court

improperly considered police reports and the affidavit of probable cause during

sentencing because the defendant never “admitted” to the facts contained therein.

State v. Young, 51 Wn. App. 517, 754 P.2d 147 (1988) has a similar outcome.

These decisions strongly imply that, unless the offender expressly agrees to a fact,

the defendant has not acknowledged the fact.

      According to the Washington Supreme Court, in State v. Ford, 137 Wn.2d

472, 482, 973 P.2d 452 (1999), the failure to object to factual assertions at a

sentencing hearing does not relieve the State of its evidentiary obligations.

Otherwise, the burden of proof would unconstitutionally shift to the defendant.

      Debra Shoemaker and her attorney’s presentation and tone of presentation

showed that she disagreed with assertions from Steve Myers beyond those

assertions against which Shoemaker presented countering facts. One need not use


                                             12
No. 35483-1-III
State v. Shoemaker (dissent)


any particular form of words to present an objection. Flaxer v. United States, 358

U.S. 147, 151-52, 79 S. Ct. 191, 3 L. Ed. 2d 183 (1958).

      I disagree with the majority that the offender must expressly ask for an

evidentiary hearing in order to receive one at the time of sentencing. RCW

9.94A.530(2) does not demand an evidentiary hearing only when the defense

requests such a hearing. The trial court has the responsibility under the statute to

hold an evidentiary hearing if it wants to consider disputed facts. State v. Talley,

83 Wn. App. at 759.

      I must next determine what constitutes an evidentiary hearing. The State

impliedly argues that Debra Shoemaker’s sentencing court conducted a sentencing

hearing. I conclude that, at a minimum, witnesses should be placed under oath and

subjected to cross-examination at the sentencing evidentiary hearing. The court

should, on the record, resolve any disputed facts.

      Most reported decisions that mention an evidentiary hearing entail a mini-

trial with witnesses under oath and cross-examined. In the setting of committed

sexually violent predators, the court annually conducts a show cause hearing to

determine whether the individual is entitled to an “evidentiary hearing.” State v.

McCuistion, 174 Wn.2d 369, 380, 275 P.3d 1092 (2012). Thus, an evidentiary


                                             13
No. 35483-1-III
State v. Shoemaker (dissent)


hearing should be deemed as involving more than the process occurring during a

show cause hearing. The law assumes an evidentiary hearing to be more than

advocates reciting facts in a summary proceeding or the review of affidavits and

records.

         Black’s Law dictionary provides definitions for “evidentiary hearing.”

               evidentiary hearing (1952) 1. A hearing at which evidence is
         presented, as opposed to a hearing at which only legal argument is
         presented. 2. See ADMINISTRATIVE PROCEEDING.

BLACK’S LAW DICTIONARY 836 (10th ed. 2014). In turn, the legal dictionary

defines “administrative proceeding”:

                administrative proceeding (1841) A hearing, inquiry,
         investigation, or trial before an administrative agency, usu.
         adjudicatory in nature but sometimes quasi-legislative. — Also
         termed evidentiary hearing; full hearing; trial-type hearing; agency
         adjudication.

BLACK’S LAW DICTIONARY 54 (10th ed. 2014). These definitions assume a mini-

trial.

         The State forwards RCW 2.28.150 as bestowing discretion on the sentencing

court when determining procedures at the sentencing hearing. The statute reads:

                When jurisdiction is, by the Constitution of this state, or by
         statute, conferred on a court or judicial officer all the means to carry it
         into effect are also given; and in the exercise of the jurisdiction, if the
         course of proceeding is not specifically pointed out by statute, any

                                                14
No. 35483-1-III
State v. Shoemaker (dissent)


      suitable process or mode of proceeding may be adopted which may
      appear most conformable to the spirit of the laws.

The State reads too much into the statute. Washington courts have already held,

based on RCW 9.94A.530(2), that, when the offender disputes facts, the sentencing

court must conduct an “evidentiary hearing.” Debra Shoemaker’s liberty interests

were at stake during a sentencing hearing. This court must construe RCW

2.28.150 strictly because of a deprivation of liberty. In re Carson, 84 Wn.2d 969,

973, 530 P.2d 331 (1975).

      The State observes that evidence rules do not apply during a sentencing

hearing. ER 1101(c)(3). I agree with the State. Nevertheless, the disavowal of

evidence rules does not excuse placing those providing testimony and declaring

facts under oath and subjecting them to cross-examination.

      The sentencing court need not enter formal findings of fact during a

sentencing evidentiary hearing. Nevertheless, the court should state on the record

its resolution of disputed facts as part of the evidentiary hearing.

      A parole revocation hearing requires minimum due process standards such

as the right to confront and cross-examine adverse witnesses and a written

statement by the fact finder as to the evidence on which he or she relies. State v.

Abd-Rahmaan, 154 Wn.2d 280, 286, 111 P.3d 1157 (2005). A sentencing hearing

                                              15
No. 35483-1-III
State v. Shoemaker (dissent)


holds as much importance as a parole revocation hearing. The sentencing court

should consider only adjudicative evidence that the parties in an adversarial

context have the opportunity to scrutinize, test, contradict, discredit, and correct.

State v. Grayson, 154 Wn.2d 333, 340, 111 P.3d 1183 (2005).

         In State v. Ford, 137 Wn.2d at 484 (1999), the Washington Supreme Court

wrote:

                Sentencing is a critical step in our criminal justice system. The
         fact that guilt has already been established should not result in
         indifference to the integrity of the sentencing process. Determinations
         regarding the severity of criminal sanctions are not to be rendered in a
         cursory fashion. Sentencing courts require reliable facts and
         information. To uphold procedurally defective sentencing hearings
         would send the wrong message to trial courts, criminal defendants,
         and the public:
                       The meaning of appropriate due process at
                sentencing is not ascertainable in strictly utilitarian terms.
                There is an important symbolic aspect to the requirement
                of due process. Our concept of the dignity of individuals
                and our respect for the law itself suffer when inadequate
                attention is given to a decision critically affecting the
                public interest, the interests of victims, and the interests
                of the persons being sentenced. Even if informal,
                seemingly casual, sentencing determinations reach the
                same results that would have been reached in more
                formal and regular proceedings, the manner of such
                proceedings does not entitle them to the respect that
                ought to attend this exercise of a fundamental state power
                to impose criminal sanctions.
         American Bar Association, STANDARDS FOR CRIMINAL JUSTICE:
         SENTENCING std. 18-5.17, at 206 (3d ed. 1994).

                                               16
No. 35483-1-III
State v. Shoemaker ( dissent)



       The peculiar circumstances of Debra Shoemaker's sentencing particularly

merited an evidentiary hearing. The sentencing court's decision was as critical as

determining guilt or innocence. The court decided whether Shoemaker received

needed treatment or spent months in prison. Shoemaker deserved similar

protections in the fact finding process at sentencing as she would have merited if

she disputed her guilt in committing the crime.

       The sentencing court would act within its discretion in denying a DOSA.

Nevertheless, any denial should come after an evidentiary hearing. Debra

Shoemaker requests that any remand be directed to another sentencing judge. The

sentencing judge is an excellent and fair judge, who need not be removed from any

remand.




                                             Fearing, J.




                                            17
