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State v. Alltus

Court of Appeals of Washington, Division 3

August 22, 2019

STATE OF WASHINGTON, Respondent,
v.
SHALIN E. ALLTUS, Appellant.

          PANEL: Judges Siddoway, Fearing and Lawrence-Berrey

         ORDER: (1) GRANTING MOTION TO PUBLISH AND (2) WITHDRAWING OPINION FILED JULY 3, 2019

         THE COURT has considered the appellant's motion to publish a portion of our July 3, 2019, opinion; and the record and file herein.

         IT IS ORDERED that the motion to publish is granted.

         IT IS FURTHER ORDERED that the court's July 3, 2019, opinion is withdrawn and a new opinion is filed herewith.

          SIDDOWAY, J.

         Shalin Alltus appeals her convictions and sentence for the 2014 premeditated murder of her uncle and related crimes, committed when she was 16 years old. We affirm the convictions but in the published portion of the opinion hold that the trial court abused its discretion when it denied Ms. Altus's request to bifurcate her sentencing, order a presentence report, and afford her lawyers sufficient time to present evidence of mitigating circumstances related to her youth. We remand with directions to order a presentence report and conduct a new sentencing hearing.

         BACKGROUND FACTS

         On October 5, 2014, Patrick Alltus was found dead in his Riverside, Washington, home. He was found wrapped in blankets with a plastic bag over his head. He had gunshot wounds and a blunt force injury to his forehead. A bullet had passed through his right wrist and re-entered his right bicep. From the angle of the wounds, his arm had to be bent at the elbow at the time he was shot. He had been shot in the face with a shotgun, with the pellets and wadding entering his jaw, breaking teeth, lacerating the left internal carotid artery and jugular vein, and striking his vertebrae.

         The cause of death was determined to be bleeding out, probably within 30 minutes of the shotgun blast. The bullet that struck him in the wrist and bicep was consistent with a .22 caliber rifle and the pellets and wadding in his face were consistent with a .410 shotgun.

         The last time anyone had heard from Mr. Alltus was late on September 30, 2014, when his girlfriend had received a text message. Although Mr. Alltus's 16-year-old niece Shalin Alltus and another teen, Parker Bachtold, had been living with Mr. Alltus, no one else was on the property when his body was found. One of Patrick Alltus's pickup trucks was missing. Law enforcement issued a statewide alert for the missing truck and listed Ms. Alltus and Mr. Bachtold as potential suspects.

         On October 6, 2014, Ms. Alltus and Mr. Bachtold were arrested at a motel in Oregon, where Mr. Bachtold's father and stepmother had been staying. Mr. Alltus's missing truck was located at the motel and his .22 rifle and .410 shotgun were found in Mr. Bachtold's parents' motel room.

         Mr. Bachtold and Ms. Alltus were both questioned by police. Although both originally denied any knowledge of Patrick Alltus's death, Mr. Bachtold eventually admitted to his role in the shooting.

         According to Mr. Bachtold, he was sleeping in a bedroom on the night Mr. Alltus was shot. Around midnight, he was awakened by a gunshot. He picked up the .410 shotgun that was in the room, loaded it, and stepped into the hallway. Looking down the hallway, Mr. Bachtold saw Ms. Alltus in the living room, behind a couch. Patrick Alltus's .22 rifle was on the ground. Mr. Alltus was coming around the side of the couch, angrily saying something to the effect, "Fuck," "God damn it," "you shot me." 2 Report of Proceedings (2 RP) at 345.[1] There was blood on his head and blood running down his hand. As Mr. Alltus approached Ms. Alltus, Mr. Bachtold shot him in the head with the .410 shotgun.

         After shooting Mr. Alltus, Mr. Bachtold claims he covered his body with a blanket and Ms. Alltus placed a plastic bag over his head. Ms. Alltus and Mr. Bachtold then grabbed a few items from the home, including the shotgun and rifle, and fled in Mr. Alltus's truck. They drove to Curtin, Oregon, where Mr. Bachtold knew his father and stepmother were staying at the time. He was aware that they had purchased a store there, and would be remodeling it.

         Mr. Bachtold and Ms. Alltus had arrived in the Curtin area when the truck ran out of gas near the store being purchased by the Bachtold parents. Mr. Bachtold was trying to push the car when an Oregon state trooper stopped and questioned him and Ms. Alltus. The trooper asked for their names, and both Ms. Alltus and Mr. Bachtold provided false identities. When asked by the trooper for identification, Ms. Alltus told him she did not have identification with her, which was false. The trooper was called away to another incident and after he left, Mr. Bachtold put the .410 shotgun and .22 rifle in the store building.

         The next morning, Mr. Bachtold and Ms. Alltus met up with Mr. Bachtold's father and stepmother at the motel where the parents were staying. Mr. Bachtold's stepmother asked him whose truck he was driving and where all the items in his possession came from. Mr. Bachtold answered that he had been working for Ms. Alltus's uncle and had earned them, which Ms. Alltus affirmed.

         Mr. Bachtold's parents rented a second motel room for Mr. Bachtold and Ms. Alltus, where they stayed until the teens were located by police and taken into custody shortly thereafter, on October 6. During their stay, Mr. Bachtold spent a substantial amount of time working with his father at the store, leaving Ms. Alltus behind at the motel.

         A few days into their stay, Mr. Bachtold showed his father the two guns taken from Mr. Alltus's home. The senior Mr. Bachtold took them and stored them in his motel room, where they were later recovered by police. The senior Mr. Bachtold explained that he took the guns because he disapproved of his son having them in his possession.

         Ms. Alltus was eventually charged, as a principal or an accomplice, with first degree aggravated murder, first degree robbery, theft of a motor vehicle, and two counts of theft of a firearm. Being a juvenile, she was also charged with two counts of second degree unlawful possession of a firearm by a juvenile.

         During the five-day jury trial, witnesses testified to the discovery of Mr. Alltus's death, the police and forensic work that followed, and Mr. Bachtold's and Ms. Alltus's actions following Mr. Alltus's death.

         There was also testimony that within the week before Mr. Alltus was shot, he, Ms. Alltus, and Mr. Bachtold visited a neighboring 17-year-old who had previously worked on Patrick Alltus's ranch. During the visit, Ms. Alltus and Mr. Bachtold shot the .410 shotgun Patrick Alltus had brought, as well as the young ranch hand's .22 rifle. The ranch hand testified that Ms. Alltus shot the .410 shotgun once or twice and seemed nervous about shooting it, while Mr. Bachtold shot almost an entire box of ammunition.

         The State also offered the testimony of Ms. Alltus's father's former girlfriend, who had visited Ms. Alltus in jail following her arrest. She testified that Ms. Alltus told her "that Patrick [Alltus] had been teaching her how to shoot and that she had liked it." 1 RP at 323. She testified that Ms. Alltus also stated that Mr. Alltus had been shot in his hand and the bullet had exited his elbow-facts consistent with the wounds caused by the rifle, but that had not been disclosed to Ms. Alltus by law enforcement.

         The State called Mr. Bachtold as one of its last witnesses, on the fourth day of trial, and he testified to his version of his and Ms. Alltus's involvement in the murder.

         In the defense case, Ms. Alltus recalled Mr. Bachtold for additional questioning and testified in her own defense. She denied any involvement in her uncle's murder, claiming she was sleeping when awakened by the sound of Mr. Bachtold's shots. She told jurors that she joined Mr. Bachtold in his flight and failed to report to anyone what had happened because she was afraid of Mr. Bachtold.

         The jury found Ms. Alltus guilty of all of the charges, but did not find any aggravators the State had alleged for its premeditated murder charge. Although the jury returned its verdict at 9:23 p.m. on the fifth trial day, the State asked for sentencing to be scheduled "as early as tomorrow" because it had "several family members of the victim present." 3 RP at 211. The trial court agreed, indicating it would sentence Ms. Alltus at 10:00 a.m. the next morning. Id. After defense counsel told the trial court, "[W]e cannot possibly prepare the mitigation necessary by ten o'clock tomorrow morning" and asked that it be scheduled on Wednesday, which would have been two days later, the trial court stated it would sentence Ms. Alltus at 3:30 p.m. the following day. 3 RP at 211-12.

         The following day, before the sentencing hearing, Ms. Alltus filed a motion asking the court to continue the sentencing hearing and order a presentence report. She argued that the court could not make an informed decision without knowing more about her difficult family background, certain traumas, and her mental health history. At the hearing, defense counsel said she had no objection to bifurcating the process so that family members could make statements at that time, with the remainder of the sentencing to be completed later. The trial court observed that the defense attorney's contract services were ending the following day, to which she responded she would nonetheless make herself available for a continued hearing. The trial court went forward anyway, observing that the presentence report would add nothing significant from its perspective.

         After hearing from the parties and the witnesses, the court sentenced Ms. Alltus to 460 months of total confinement. Ms. Alltus appeals.

         ANALYSIS

         Ms. Alltus makes eight assignments of error that require review.[2] We first address her challenges to the court's refusal to continue her sentencing hearing and to its conduct of that hearing. In the unpublished portion of the opinion we provide additional procedural background and address the remaining assignments of error.

         I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO BIFURCATE THE SENTENCING HEARING AND ORDER A PRESENTENCING REPORT

         Ms. Alltus challenges the trial court's conduct of the sentencing hearing on three grounds. Because we conclude that the trial court abused its discretion by denying Ms. Alltus's request for a continuance and preparation of a presentence report, we need not address her two related arguments that her sentence was a de facto life sentence that required a Miller[3] hearing.

         A sentencing hearing shall be held within 40 court days following conviction, and the time for conducting the hearing can be continued for good cause. RCW 9.94A.500(1). The trial court has broad discretion to determine whether there is good cause to postpone sentencing. State v. Roberts, 11 Wn. App. 678, 685, 894 P.2d 1340 (1995). We review a court's timing decision for abuse of discretion.

         CrR 7.1(a) provides that after a defendant pleads or is found guilty, "the court may order that a risk assessment or presentence investigation and report be prepared by the Department of Corrections, when authorized by law." CrR 7.1(b) identifies what the report is to contain:

The report of the presentence investigation shall contain the defendant's criminal history, as defined by RCW 9.94A.030, such information about the defendant's characteristics, financial condition, and the circumstances affecting the defendant's behavior as may be relevant in imposing sentence or in the correctional treatment of the defendant, information about the victim, and such other information as may be required by the court.

         A comment to the rule states that it "giv[es] the court a measure of discretion to dispense with a report when the appropriate sentence can readily be determined on the basis of the sentencing guidelines score sheet." CrR 7.1, cmt.

         "Where the decision of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion." Farmer v. Davis, 161 Wn.App. 420, 430, 250 P.3d 138 (2011). Here, the trial court explained that Ms. Alltus did not have any criminal history or finances that would be identified by the report, and it did not believe the report would be helpful to the court in sentencing. 3 RP at 224-26.

         The responsibilities of a court in sentencing a juvenile must be taken into consideration by the court in exercising its discretion on the timing of the sentencing hearing and whether to order a presentence report. In State v. Scott, 190 Wn.2d 586, 416 P.3d 1182 (2018), our Supreme Court reiterated its earlier holding in State v. Houston-Sconiers, 188 Wn.2d 1, 20, 391 P.3d 409 (2017) that the Eighth Amendment requires sentencing courts to treat children differently, with discretion, and with consideration of mitigating factors. As the court explained in Scott:

Applying Miller, this court held that "[t]rial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA [(Sentencing Reform Act of 1981, ch. 9.94A RCW)] range and/or sentence enhancements." [Houston-Sconiers, 188 Wn.2d] at 21 (emphasis added). This court explained in Houston-Sconiers, "Critically, the Eighth Amendment requires trial courts to exercise this discretion at the time of sentencing itself, ...

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