iJor.u. to I'." <•>• <-•

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

OLIVER W. WEAVER, JR. Appellant. No. 72648-0-1 DIVISION ONE UNPUBLISHED OPINION

FILED: November 16, 2015 Appelwick, J. — Weaver was convicted of rape of a child in the second 

### degree and rape in the second degree. The jury found thatWeaverimpregnated the victim, an aggravating factor forsentencing purposes. The trial court imposed an exceptional sentence on both counts. AtWeaver's third sentencing hearing, the trial court imposed the same exceptional sentence originally imposed. Weaver 

### argues that the trial court did notjustify the exceptional sentence, and that the sentence is clearlyexcessive inlight of his changed health conditions. We affirm. FACTS 

### In early December 2002, R.T. was working for OliverWeaver. State v. Weaver, 140 Wn. App. 349, 351, 166 P.3d 761 (2007), adhered to on remand, 

### noted at 156Wn. App. 1015, 2010 WL2165353, reversed by. 171 Wn.2d 256, 251 P.3d 876 (2011). One day, R.T. was cleaning Weaver's home when WeaverNo. 72648-0-1/2 approached her and violently raped her. Id. He threatened R.T., and she was too 

### afraid to reportthe rape. Id. But, R.T. did disclose the rape two months laterwhen she suspected she was pregnant, jd. Her doctor confirmed that R.T. was pregnant. Id. On the advice of her mother and doctor, R.T. terminated the pregnancy. Id. Weaver was charged with one count of second degree rape of a child (Count I)and one count of second degree rape (Count II). Thejury found Weaver guilty as charged. Italso found that R.T. was a child atthe time ofthe offense and that she was impregnated by the defendant. For sentencing purposes, it is an 

### aggravating factor that the offense resulted inthe pregnancy of a child victim of rape. Former RCW 9.94A.535(2)(k) (2002). The trial court imposed an exceptional sentence of 250 months to life imprisonmentforeach count. The court determined that the terms would run concurrently. 

### Weaver has appealed his conviction and sentence multiple times. Weaver, 

### 140 Wn. App. 349; State v. Weaver, noted at 179 Wn. App. 1001, 2014 WL 231338, review denied, 180 Wn.2d 1015 327 P.3d 55 (2014).. At issue here is 

### Weaver's third sentencing hearing, which took place inOctober2014. Onlycount Iwas before the trial court at this hearing. After considering Weaver's declining health and the record below, thetrialcourtimposedthe sameexceptional sentence that the trial court originally imposed.No. 72648-0-1/3 

### To clarify what law applied at the time of the third sentencing, the State suggested that the trial court re-sign the original judgment and sentence, rather than enteran entirely new document. Thetrialcourtcomplied in part. Itadded the date and a signature to the previously entered findings offact and conclusions of law supporting the original sentence. The court also added a single handwritten sentence to the conclusions of law: "The exceptional sentence of 250 months is re-imposed on count Ifor the above reasons." The trial court also executed a new judgment and sentence. Weaver appeals. DISCUSSION Weaver contends the trial court erred in imposing an exceptional sentence 

### of 250 months on Count I.1 He provides several arguments challenging the trial court's reasons for its decision. We understand these arguments as an assertion that evidence inthe record does not supportthe trial court's reasons for imposing 

### an exceptional sentence. We review this question under a clearly erroneous standard. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). Weaver asserts that the trial court failed to make an independent 

### determination that the exceptional sentence was justified. He points to the fact

1A court has the discretion to decline to hear an appeal on the basis that it is moot. State v. Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004). A case is moot 

### if the court cannot provide effective relief. In re Pers. Restraint of Mines, 146 Wn.2d 279, 283-84, 45 P.3d 535 (2002). The State contends Weaver's argument is moot, because the convictions have been affirmed and the exceptional sentence 

### of 250 months on count II stillstands. Itargues that a decision inWeaver's favor 

### would have no practical consequenceforWeaver. However, we decline to resolve his claim on mootness rather than on the merits.No. 72648-0-1/4


### that the trial court did not enter new findings and merely signed on to the original findings with a note that the sentence is "re-imposed on count I for the above reasons." But, Weaver's argument ignores evidence of the trial court's independent determination in the record. The court specifically noted that ithad "reviewed the entire record" before imposing the exceptional sentence. The court heard defense counsel's request that Weaver be sentenced to only 95 months. And, the court heard Weaver explain his changed health conditions. Then, the court imposed an exceptional sentence of 250 months on count 1, noting that it


### was "[mjaking an independent determination that that's appropriate." Weaver also claims the court did not assess his changed circumstances in 

### making this determination. Heargues the court should have looked at his terminal illness and little remaining time to live. But, after Weaver spoke about his health conditions, the trial court told him,"I'm sorry to hearthat." And, immediately before 

### itannounced its ruling, the court toldWeaveragain, "I'm sorry aboutyour medical situation." The evidence in the record shows that the trial court did consider Weaver's health conditions. We hold that there is sufficient evidence in the record to support the trial 

### court's reasonsfor imposing the exceptional sentence. The sentence is not clearly

erroneous. 

### Additionally, Weaver argues that the trial court abused its discretion in imposing a clearlyexcessive sentence in light of his terminal illness. We apply an abuse ofdiscretion standard to the question ofwhetherthe sentence imposed was 

### clearlyexcessive. Statev. Ritchie, 126Wn.2d 388,395-96, 894 P.2d 1308(1995).No. 72648-0-1/5
A sentencing court abuses its discretion in setting an exceptional sentence only if itrelies on an impermissible reason or imposes a sentence which is so long that it shocks the conscience ofthe reviewing court. ]cL Here, the courtrelied upon thejury'sfinding thatthe victim was a child victim of rape who became pregnant as a result ofthe offense. Under the Sentencing 

### Reform Act, this is a permissible reason for which to impose an exceptional sentence. Former RCW 9.94A.535(2)(k) (2002). 

### The only remaining question is whether, considering the record, the sentence is so long that it shocks the conscience. Ritchie, 126 Wn.2d at 396. Weaver asserts that his sentence is clearly excessive due to the fact that he now 

### has pancreatic cancer and little timeleftto live. But, Weaver cites noauthorityfor 

### thepropositionthat hisdeteriorating health makes hisexceptional sentence shock the conscience. Assuming his deteriorating health is a factor to be considered, we note his assertion that he had 15 or 16 months to live. If true, any sentence 

### whetherextending hisincarceration 20months or 250 monthswould be averitable life sentence. Moreover, the unchallenged portion of his sentence imposed a 250 

### month term independent of the sentence on this count. This undercuts the claim that the sentence shocks the conscience. 

### Weaverwas convicted of the violent rape of a 13 yearoldgirl. Weaver, 140 

### Wn. App. at 351. R.T. had to disclose the rape whenshediscovered that she was 

### pregnant. Id\ With the help of her mother and doctor, R.T. decided to have an abortion. ]± And, thejuryentered a specialfinding that Weaverimpregnated R.T.

as a result ofthe rape. Id. at 352.No. 72648-0-1/6 

### In light ofthese facts, we hold thatWeaver's exceptional sentence does not shock the conscience. Therefore, the trial court did not abuse its discretion in imposing such a sentence. We affirm.

WE CONCU 

# {kjXp^