The State of Washington, Petitioner, v. Sylvester C. Lopez, Sr., Respondent, 147 Wash. 2d 515

Sanders, J. — State v. Lopez, 107 Wn. App. 270, 27 P.3d 237 (2001) vacated Respondent Lopez’s life-long persistent offender sentence because the State failed to establish the necessary predicate convictions with satisfactory evidence. The Court of Appeals remanded for sentencing on the existing record. We affirm. FACTS Sylvester Lopez was charged with four counts of first degree assault with a firearm and one count of unlawful possession of a firearm in the first degree. On direct examination Lopez admitted a previous conviction for first degree burglary. Verbatim Report of Proceedings (RP) at 318.

A jury found Lopez guilty of two counts of first degree assault, two counts of the lesser-included offense of second degree assault, and one count of unlawful possession of a firearm in the first degree. At sentencing the prosecution asked the court to impose a life sentence without the possibility of parole under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.120(4) (2000), yet failed to provide evidence of Lopez’s prior convictions.

Lopez objected: [I]n order to impose the life sentence the Court has got before it, . . . we need to have the prior offenses . . . proved by a preponderance of the evidence, which would require . . . two separate judgments and sentences for two separate incidents prior to that date that are serious offenses. RP at 408-09. When asked to respond, the prosecution replied: I don’t, your Honor. I don’t know if that—I guess that’s a challenge that probably should have been brought up earlier. We can provide copies of the judgments and sentences in both cases. I don’t have them with me right now. Id. at 409.

The judge declined to accept the prosecutor’s offer: Well, I don’t—I am not aware of any procedure that requires that. I’m going to go ahead and proceed with sentencing today. Assuming that an appeal is filed in the case, if it becomes apparent during the processing of that appeal that procedurally we have omitted a step, we can revisit that and correct it if that is necessary .... Id. at 409-10. The judge sentenced Lopez to life without parole. Id. at 412.

Lopez appealed his conviction and life sentence, alleging (1) ineffective assistance of counsel, (2) violation of his due process right to be adequately notified that he was facing a life sentence, and (3) the imposition of his sentence as a persistent offender without competent proof of prior convictions. The Court of Appeals granted Lopez’s ineffective assistance of counsel claim in part and vacated his conviction for unlawful possession of a firearm. Lopez, 107 Wn. App. at 273.

It did not reach Lopez’s due process claim, overturned the persistent offender finding, and remanded for sentencing before a different judge on the existing record. Id. at 280. The State petitioned for discretionary review on the sole issue of whether the Court of Appeals erred when it remanded for sentencing without providing the State an opportunity to present evidence of Lopez’s prior convictions on remand. State’s Pet. for Review at 2, 5. We granted review on this issue.

ANALYSIS Former RCW 9.94A.110(1) (2000) requires the court to conduct a sentencing hearing before imposing a sentence. “In determining any sentence, 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.” Former RCW 9.94A.370(2) (1999). Unless the defendant is convicted pursuant to a plea agreement, he or she is not required to disclose any prior convictions. State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986) (citing former RCW 9.94A. 100 (1981)).

The State must prove a defendant’s criminal history by a preponderance of the evidence. Former RCW 9.94A.110(1). “The best evidence of a prior conviction is a certified copy of the judgment.” State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999). The State may introduce other comparable evidence only if it is shown that the writing is unavailable for some reason other than the serious fault of the proponent. State v. Fricks, 91 Wn.2d 391, 397, 588 P.2d 1328 (1979). Here, Lopez admitted to a prior conviction for first degree burglary.

Thus, the sentencing court properly considered this conviction for the purposes of determining Lopez’s sentence. Former RCW 9.94A.370(2). However, the State also alleged prior convictions for delivery of controlled substances and second degree assault, but failed to provide any supporting evidence. Clerk’s Papers at 192. Thus, the sentencing court erred when it considered these unproved convictions. The State concedes as much, but argues it should be entitled to submit evidence of Lopez’s prior convictions on remand because Lopez did not provide a specific objection. Pet. for Review at 1, 4.

However, a remand for an evidentiary hearing is appropriate only when the defendant has failed to specifically object to the State’s evidence of the existence or classification of a prior conviction. Ford, 137 Wn.2d at 485; State v. McCorkle, 88 Wn. App. 485, 499, 945 P.2d 736 (1997), aff’d, 137 Wn.2d 490, 973 P.2d 461 (1999).

Where the defendant raises a specific objection and “the disputed issues have been fully argued to the sentencing court, we . . . hold the State to the existing record, excise the unlawful portion of the sentence, and remand for resentencing without allowing further evidence to be adduced.” Ford, 137 Wn.2d at 485. We require a specific objection to offer the trial court the opportunity to correct the error. Spinelli v. Econ. Stations, Inc., 71 Wn.2d 503, 508, 429 P.2d 240 (1967).

From this record it is apparent both the prosecution and the sentencing court were laboring on the false assumption the defendant was required to provide an accurate statement of his criminal history. See RP at 408-10, quoted supra at page 518. Even now the State complains Lopez’s objection was not specific because he did not contest the existence of any of the convictions alleged in the prosecution’s proposed judgment or their characterization either as felonies or as violent offenses for the purposes of the POAA. Pet. for Review at 7. But this was not Lopez’s obligation. Lopez did not enter a plea agreement.

He had no obligation to present the court with evidence of his criminal history. Ammons, 105 Wn.2d at 183. Lopez objected to the court’s imposition of a life sentence absent proof of a prior offense by a preponderance of the evidence. His objection was sufficient to notify the sentencing court of its obligation to demand evidence of the prior convictions alleged by the State. Thus, the Court of Appeals correctly remanded for sentencing on the existing record.

Notwithstanding Lopez’s specific objection, the State contends the mandatory character of the POAA requires it be granted a second opportunity to prove Lopez’s prior convictions on remand. State’s Pet. for Review at 5-6. The State argues our decision in State v. James consolidated on appeal with State v. Morley, 134 Wn.2d 588, 952 P.2d 167 (1998) and former RCW 9.94A.080(6) (1995), recodified by Laws of 2001, ch. 10, § 6, require such result. However, neither former RCW 9.94A.080(6) nor James applies here.

James involved the limited issue of whether the sentencing court had the authority to bar the prosecution from seeking a life sentence without the possibility of parole under the POAA, where at the time the defendant entered into a plea agreement, the prosecution was unaware of the defendant’s prior military conviction and the defendant reasonably but erroneously believed it would not count as a prior offense for the purposes of the POAA. Morley, 134 Wn.2d at 620-21.

James does not remove the State’s statutory obligation to prove the defendant’s prior convictions by a preponderance of the evidence for the purposes of the POAA. See State v. Thorne, 129 Wn.2d 736, 781, 921 P.2d 514 (1996). Nor does it eliminate the State’s statutory obligation to provide proof of the defendant’s alleged prior convictions at the sentencing hearing. Ford, 137 Wn.2d at 480.

As emphasized in Ford, it would be “ ‘inconsistent with the principles underlying our system of justice to sentence a person on the basis of crimes that the State either could not or chose not to prove.’ ” Id. (quoting In re Pers. Restraint of Williams, 111 Wn.2d 353, 357, 759 P.2d 436 (1988)). Similarly, the State’s reliance on former RCW 9.94A.080 (6), is equally misplaced. Former RCW 9.94A.080(6) limits the prosecution’s authority to negotiate a plea agreement with a defendant whose criminal history mandates a life sentence under the POAA. Lopez did not plead guilty pursuant to a plea bargain.

Thus, that statute has no bearing. Finally, the State argues it offered to provide copies of Lopez’s judgments and sentences and should not be penalized for the sentencing court’s error in proceeding without them. State’s Pet. for Review at 4-5.

But the record reveals although the State argued Lopez was a persistent offender at the sentencing hearing, it was nevertheless completely unprepared to prove his prior offenses. “The State does not meet its burden through bare assertions, unsupported by evidence.” Ford, 137 Wn.2d at 482. “To uphold procedurally defective sentencing hearings would send the wrong message to trial courts, criminal defendants, and the public.” Id. at 484. Allowing the State a second opportunity to prove its allegations of Lopez’s criminal history would send an equally wrong message.

The Court of Appeals is affirmed and the case is remanded to a different trial court judge for resentencing consistent with this opinion. Alexander, C.J., and Smith, Johnson, Chambers, and Owens, JJ., concur. While second degree assault counts as a “strike” for the purposes of a mandatory life sentence under the POAA., delivery of a controlled substance does not. Former RCW 9.94A.030(27), (31)(a) (2000). The dissent would carve out an exception to Ford when the trial court overrules the defendant’s objection, claiming that to do otherwise unfairly penalizes the State. Dissent at 523-24.

The only authority the dissent finds to support its position that the State should be granted a second opportunity to provide evidence it should have submitted at the sentencing hearing is State v. Pacheco, 107 Wn.2d 59, 726 P.2d 981 (1986). The dissent cites Pacheco for the general proposition that once the trial court has ruled on an objection, the State is in no position to “ignore the court’s ruling.” Dissent at 525.

However, Pacheco merely upholds a trial court’s authority “to control the courtroom consistent with the ends of justice,” it does not apply here where the sentencing court’s ruling eliminated the State’s burden of proof. Pacheco, 107 Wn.2d at 67; State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999) (“[T]he use of a prior conviction as a basis for sentencing under the SRA [Sentencing Reform Act of 1981] is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence.”).

Moreover the dissent mischaracterizes the proceeding before the sentencing court, implying the State was powerless to stop the sentencing court from entering a judgment without the necessary proof. Dissent at 524-25. But the record reveals the sentencing court invited the State to respond to Lopez’s objection. Verbatim Report of Proceedings (RP) at 409. It did not prevent the State from presenting evidence of Lopez’s prior offenses and did not rule on Lopez’s objection until after it considered the State’s errant contention that Lopez’s objection was untimely. Id. at 409-10.

Former ROW 9.94A.100 (1981) requires “[t]he prosecuting attorney and the defendant” to “provide the court with their understanding of. .. the defendant’s criminal history . .. prior to a plea of guilty pursuant to a plea agreement.” Any disputes about the defendant’s history are to be resolved at the sentencing hearing. Id. The sentencing court may “rely on no more information than [was] admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.” Former RCW 9.94A.370(2) (1999).

Acknowledgment includes the failure to object to information stated in the presentence report. Id. “Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.” Id. In response to Lopez’s objection to the imposition of a life sentence without proof of prior convictions, the State responded “that’s a challenge that probably should have been brought up earlier.” RP at 409.

Moreover at oral argument the State initially argued Lopez had waived his right to object because he allegedly failed to object to the State’s depiction of his criminal history in its presentence report. The State later retracted this argument when it became evident the State had never completed a presentence report for Lopez.