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Washington v. Hardesty

filed: May 9, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
HERBERT DAVID HARDESTY, APPELLANT.



Appeal from Superior Court, Okanogan (91-1-00153-5) County; Honorable Frederick Fleming, Judge. Judgment Date: 7-1-93.

Talmadge, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Madsen, Alexander, Sanders, J.j., concurring.

Author: Talmadge

En Banc

TALMADGE, J. -- Herbert D. Hardesty (Hardesty) allegedly defrauded the trial Court by failing to accurately relate his criminal history, thereby obtaining a more favorable sentence. He fully served the sentence, and now claims the double jeopardy clause of the Fifth Amendment to the United States Constitution prevents his resentencing after the State brought the alleged fraud to the attention of the trial court. The Court of Appeals agreed, holding double jeopardy forbids the vacation of a "facially valid" sentence the defendant has fully served, even though the defendant procured the "facially valid" sentence by fraud. State v. Hardesty, 78 Wash. App. 593, 599, 897 P.2d 1282 (1995).

Where a defendant defrauds a trial court in sentencing, a defendant has no expectation of finality in the sentence for purposes of the double jeopardy clause, particularly

where our criminal rules provide a procedure to set aside a sentence for fraud. CrR 7.8(b) (3). However, because the State here failed to meet the requirements of CrR 7.8 to set aside the sentence for fraud, we vacate the trial court's Amended Judgment and Sentence.

ISSUES

1. Is double jeopardy violated if a defendant is resentenced after a sentence is fully served, if the defendant defrauded the trial court to obtain the original sentence?

2. Did the trial court properly conclude Hardesty defrauded the trial court here?

FACTS

On September 27, 1991, in the Okanogan County Superior Court, Hardesty pleaded guilty to second degree burglary of a residence, and, in return, the State dropped a theft charge. The plea agreement contained an agreed criminal history revealing two prior felonies. Hardesty's resulting offender score was 4, with a sentence range of 12 to 16 months. Based on his plea and criminal history, the trial court found Hardesty guilty and sentenced him to 14 months. After serving approximately nine months, Hardesty was released. He was not under community supervision.

In the 1991 agreement, Hardesty and the State certified the prosecutor's understanding of Hardesty's complete criminal history was as follows:

Crime Sentencing Date Date of Crime

Burglary in the second degree 5 Jan 77 24 Apr 76

Burglary in the second degree 26 Feb 88 01 Dec 82

In 1993, the State learned Hardesty's true criminal history included four felonies rather than just two:

Crime Sentencing Date Date of Crime

Burglary in the second degree 5 Jan 77 24 Apr 76

Burglary in the second degree 17 Nov 81 21 Sep 81

Attempt possess a controlled 21 Apr 86 24 Apr 85

sub./marijuana

Possession of stolen property 10 Aug 88 30 Jan 88

Based upon four prior felonies, Hardesty's proper offender score in 1991 was 6, with a range of 22 to 29 months.

On May 21, 1993, the State filed a "Motion for Resentencing Pursuant to RCW 9.94A.100," which contained only a brief memorandum of authorities. The State asked the trial court to order a hearing, and requested a resentencing of Hardesty to 29 months' imprisonment based upon his additional felony convictions. The State's motion did not mention fraud, and did not meet the procedural requirements of CrR 7.8(c). On June 28, 1993, Hardesty's counsel filed a memorandum opposing resentencing, citing the Fifth Amendment double jeopardy clause and requesting specific performance of the plea agreement. Neither the State nor Hardesty filed an affidavit in support of their memoranda.

At a June 30, 1993 hearing on its motion, the State explained the prosecutor's office in 1991 had known only of the first two felony convictions because Nevada officials had not entered the others on a national computer data base. The prosecutor's office learned of the additional felonies fortuitously in 1993 when Hardesty was arrested and convicted of second degree child molestation, and the prosecutor's office asked Nevada officials for copies of his prior felony convictions. The State alleged fraud for the first time at the hearing, arguing the double jeopardy clause did not prevent resentencing because Hardesty had defrauded the court in 1991 by not disclosing his two additional felony convictions. Hardesty's counsel argued returning Hardesty to prison violated double jeopardy. However, Hardesty's counsel did not present any evidence negating the elements of the alleged fraud. The trial court

granted the State's motion, orally finding Hardesty had committed fraud.

At this point, Hardesty asked to speak. He insisted any error in the 1991 criminal history was mutual, and denied intentionally or fraudulently misstating his criminal history. He explained he had been "rushed" in 1991 and had only had a few minutes to review the plea agreement. He also argued the 1991 criminal history revealed three felonies, not just two, because of the oddities of the dates on the second line (a 1982 crime for which he was sentenced in 1988). He thought the attempted possession of marijuana was only a misdemeanor. However, Hardesty does not now contest the fact he had four felony convictions prior a to 1991.

The trial court adhered to its finding of fraud, and orally sentenced Hardesty to 22 months, with credit for time served. In sentencing Hardesty to the low end of the standard range, the trial court indicated it was giving Hardesty "the benefit of the doubt." Report of Proceedings (June 30, 1993), at ...


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