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State v. Aguilar-Rivera

August 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JOSE AGUILAR-RIVERA, APPELLANT.



Superior Court County: King. Superior Court Cause No: 95-1-02015-8. Date filed in Superior Court: August 1, 1995. Superior Court Judge Signing: Hon. Linda Lau.

Written by: Judge Kennedy. Concurred by: Judges Baker, Ellington

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Jose Aguilar-Rivera appeals his exceptional sentence for possession of cocaine with intent to deliver, contending that he was denied his right of allocution. *fn1 After orally announcing Aguilar-Rivera's exceptional sentence, the Judge was reminded by defense counsel that the defendant had not yet been given his right of allocution. The Judge apologized and invited Aguilar-Rivera to speak on his own behalf. After Aguilar-Rivera's counsel spoke for him, the Judge adhered to the exceptional sentence. We hold that where a defendant's right of allocution is inadvertently omitted until after the court has orally announced the sentence that it intends to impose, the defendant is entitled to a new sentencing hearing, before a different Judge.

FACTS

In March 1995, Aguilar-Rivera was charged with possession of cocaine with intent to deliver, in violation of RCW 69.50.401(a)(1)(i). Aguilar-Rivera entered an Alford *fn2 plea, and was found guilty as charged.

At the sentencing hearing, the State recommended an exceptional sentence of 48 months, and the defendant requested a sentence within the standard range. After hearing argument from both sides regarding the factual and legal bases for entering an exceptional sentence, the court accepted the arguments of the State, rejected those of the defense, announced the decision to enter an exceptional sentence of 48 months and outlined the reasons. The court then imposed certain financial obligations, waived others, ordered 12 months of community supervision, imposed conditions and announced: "That is the sentence of the court." Report of Proceedings at 15.

The court then directed the defendant to come forward for fingerprinting, to which defense counsel responded:

[DEFENSE ATTORNEY]: Your Honor, I just thought we were dealing with the legal issue and so--

THE COURT: Oh, I'm sorry. I just --

[DEFENSE ATTORNEY]: -- you never gave my client's right of allocution or--

THE COURT: Yes, please, I'm sorry --

[DEFENSE ATTORNEY]; -- or anything, so --

THE COURT: -- I'm glad you reminded me. I got on a --

[DEFENSE ATTORNEY]: I don't know if it's a moot point now, but you just ...


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