Judges Siddoway, Fearing and Lawrence-Berrey
(1) GRANTING MOTION TO PUBLISH AND (2) WITHDRAWING OPINION
FILED JULY 3, 2019
COURT has considered the appellant's motion to publish a
portion of our July 3, 2019, opinion; and the record and file
ORDERED that the motion to publish is granted.
FURTHER ORDERED that the court's July 3, 2019, opinion is
withdrawn and a new opinion is filed herewith.
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.
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.
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.
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
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.
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.
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. 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.
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.
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
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
hearing from the parties and the witnesses, the court
sentenced Ms. Alltus to 460 months of total confinement. Ms.
Alltus makes eight assignments of error that require
review. 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.
TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO BIFURCATE THE
SENTENCING HEARING AND ORDER A PRESENTENCING REPORT
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 hearing.
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.
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.
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.
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.
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
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, ...