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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                        No. 72648-0-1
                     Respondent,
                                                        DIVISION ONE

                                                        UNPUBLISHED OPINION
 OLIVER W. WEAVER, JR.

                     Appellant.                         FILED: November 16, 2015


      Appelwick, J. — Weaver was convicted of rape of a child in the second

degree and rape in the second degree. The jury found that Weaver impregnated

the victim, an aggravating factor for sentencing purposes. The trial court imposed

an exceptional sentence on both counts. At Weaver's third sentencing hearing,

the trial court imposed the same exceptional sentence originally imposed. Weaver

argues that the trial court did not justify the exceptional sentence, and that the

sentence is clearly excessive in light of his changed health conditions. We affirm.

                                          FACTS


       In early December 2002, R.T. was working for Oliver Weaver. State v.

Weaver, 140 Wn. App. 349, 351, 166 P.3d 761 (2007), adhered to on remand,

noted at 156 Wn. App. 1015, 2010 WL 2165353, reversed by. 171 Wn.2d 256, 251

P.3d 876 (2011). One day, R.T. was cleaning Weaver's home when Weaver
No. 72648-0-1/2




approached her and violently raped her. Id. He threatened R.T., and she was too

afraid to report the rape. Id. But, R.T. did disclose the rape two months later when

she suspected she was pregnant,            jd.   Her doctor confirmed that R.T. was

pregnant.   Id.   On the advice of her mother and doctor, R.T. terminated the

pregnancy. Id.

        Weaver was charged with one count of second degree rape of a child

(Count I) and one count of second degree rape (Count II). The jury found Weaver

guilty as charged. It also found that R.T. was a child at the time of the offense and

that she was impregnated by the defendant. For sentencing purposes, it is an

aggravating factor that the offense resulted in the pregnancy of a child victim of

rape.    Former RCW 9.94A.535(2)(k) (2002).             The trial court imposed an

exceptional sentence of 250 months to life imprisonment for each count. The court

determined that the terms would run concurrently.

        Weaver has appealed his conviction and sentence multiple times. Weaver,

140 Wn. App. 349; State v. Weaver, noted at 179 Wn. App. 1001, 2014 WL

231338, review denied, 180 Wn.2d 1015 327 P.3d 55 (2014).. At issue here is

Weaver's third sentencing hearing, which took place in October 2014. Only count

I was before the trial court at this hearing. After considering Weaver's declining

health and the record below, the trial court imposed the same exceptional sentence

that the trial court originally imposed.
No. 72648-0-1/3




      To clarify what law applied at the time of the third sentencing, the State

suggested that the trial court re-sign the original judgment and sentence, rather

than enter an entirely new document. The trial court complied in part. It added the

date and a signature to the previously entered findings of fact and conclusions of

law supporting the original sentence. The court also added a single handwritten

sentence to the conclusions of law: "The exceptional sentence of 250 months is

re-imposed on count I for the above reasons." The trial court also executed a new

judgment and sentence.

      Weaver appeals.

                                   DISCUSSION

      Weaver contends the trial court erred in imposing an exceptional sentence

of 250 months on Count I.1 He provides several arguments challenging the trial

court's reasons for its decision. We understand these arguments as an assertion

that evidence in the record does not support the trial court's reasons for imposing

an exceptional sentence. We review this question under a clearly erroneous

standard. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).

      Weaver asserts that the trial court failed to make an independent

determination that the exceptional sentence was justified. He points to the fact


       1 A court has the discretion to decline to hear an appeal on the basis that it
is moot. State v. Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004). A case is moot
if the court cannot provide effective relief. In re Pers. Restraint of Mines, 146
Wn.2d 279, 283-84, 45 P.3d 535 (2002). The State contends Weaver's argument
is moot, because the convictions have been affirmed and the exceptional sentence
of 250 months on count II still stands. It argues that a decision in Weaver's favor
would have no practical consequence for Weaver. However, we decline to resolve
his claim on mootness rather than on the merits.
No. 72648-0-1/4




that the trial court did not enter new findings and merely signed on to the original

findings with a note that the sentence is "re-imposed on count I for the above

reasons."     But, Weaver's argument ignores evidence of the trial court's

independent determination in the record. The court specifically noted that it had

"reviewed the entire record" before imposing the exceptional sentence. The court

heard defense counsel's request that Weaver be sentenced to only 95 months.

And, the court heard Weaver explain his changed health conditions. Then, the

court imposed an exceptional sentence of 250 months on count 1, noting that it

was "[mjaking an independent determination that that's appropriate."

       Weaver also claims the court did not assess his changed circumstances in

making this determination. He argues the court should have looked at his terminal

illness and little remaining time to live. But, after Weaver spoke about his health

conditions, the trial court told him, "I'm sorry to hear that." And, immediately before

it announced its ruling, the court told Weaver again, "I'm sorry about your medical

situation."   The evidence in the record shows that the trial court did consider

Weaver's health conditions.

       We hold that there is sufficient evidence in the record to support the trial

court's reasons for imposing the exceptional sentence. The sentence is not clearly

erroneous.


       Additionally, Weaver argues that the trial court abused its discretion in

imposing a clearly excessive sentence in light of his terminal illness. We apply an

abuse of discretion standard to the question of whether the sentence imposed was

clearly excessive. State v. Ritchie, 126 Wn.2d 388, 395-96, 894 P.2d 1308 (1995).
No. 72648-0-1/5




A sentencing court abuses its discretion in setting an exceptional sentence only if

it relies on an impermissible reason or imposes a sentence which is so long that it

shocks the conscience of the reviewing court. ]cL

       Here, the court relied upon the jury's finding that the victim was a child victim

of rape who became pregnant as a result of the offense. Under the Sentencing

Reform Act, this is a permissible reason for which to impose an exceptional

sentence. Former RCW 9.94A.535(2)(k) (2002).

      The only remaining question is whether, considering the record, the

sentence is so long that it shocks the conscience. Ritchie, 126 Wn.2d at 396.

Weaver asserts that his sentence is clearly excessive due to the fact that he now

has pancreatic cancer and little time left to live. But, Weaver cites no authority for

the proposition that his deteriorating health makes his exceptional sentence shock

the conscience. Assuming his deteriorating health is a factor to be considered, we

note his assertion that he had 15 or 16 months to live.          If true, any sentence

whether extending his incarceration 20 months or 250 months would be a veritable

life sentence. Moreover, the unchallenged portion of his sentence imposed a 250

month term independent of the sentence on this count. This undercuts the claim

that the sentence shocks the conscience.

       Weaver was convicted of the violent rape of a 13 year old girl. Weaver, 140

Wn. App. at 351. R.T. had to disclose the rape when she discovered that she was

pregnant. Id\ With the help of her mother and doctor, R.T. decided to have an

abortion. ]± And, the jury entered a special finding that Weaver impregnated R.T.

as a result of the rape. Id. at 352.
No. 72648-0-1/6




      In light of these facts, we hold that Weaver's exceptional sentence does not

shock the conscience. Therefore, the trial court did not abuse its discretion in

imposing such a sentence.

      We affirm.




WE CONCU




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