### FILED MARCH 17, 2016 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III

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

v. DEAN 

### L. ANDERS, Appellant. ) ) ) ) ) ) ) ) ) No. 32114-2-111

UNPUBLISHED OPINION

FEARING, J.

- DeanAnders appeals his conviction for first degree assaultwith a deadly weapon. He argues his public trial rights were violated whentheparties registeredtheirrespective preemptory challenges onpaper. Anders also appeals his sentence. He contends the trial court failed to entertainhis request for an exceptional sentence. Based on Supreme Courtprecedence, wereject Anders' arguments and confirmhis conviction and sentence. FACTS InMarch 2013, the accused Dean Anders and victimRichard Burtresided in a homeless encampment in People'sPark, Spokane. Anders occupiedhis tent with his girlfriend, Jacqueline Stokes. Burtinhabited a nearby tent. John Hill lived in a tent oneNo. 32114-2-111 State v. Anders
hundred yards from Anders' and Burt's abodes. Theprosecution arises from a night attack on Richard Burt on March 6, 2013. Afterthe attack, Burtretreated to his tent and calledthe police the following morning. Burt suffered multiple injuries from the assault, including a broken nose, fractured skull, three spine fractures, two fractured ribs, head lacerations and bruising. Dean Anders' codefendant, John Hill, testified at trial thathe heard screaming while at his campsite during the evening ofMarch 6, 2013. Hebelieved the screaming emanated from Dangerous Debbie Do, who previously destroyed his tent in a drunken rage. Before hearing the screams, Hill heard someonewalking nearhis tent and muttering: "I'm goingto kill you, you mother fucker. I'm goingto getyou." 4 Verbatim Report ofProceedings (VRP) (Oct. 28, 2013) at 697. Hill heard the horrible screams for about five minutes and thenperceived a personracing down a trail. Theperson disappeared into the dark. During his trial testimony, Hill denied attacking and even seeing Burt that night. DeanAnders admitted he struckRichard Burt on March 6, 2013. He contended that he acted in defense ofhimselfand his girlfriend, Jacqueline Stokes. Accordingto Anders, he and Stokes slept in their tentuntil one o'clock in the morning when Richard Burtwoke him. Burt screamed and yelled outside Anders' tent door. Anders dressed. Burtwas drunk. Stokes, while inside the tent, cursed Burt. Burt, in return, said: "Fuck you, bitch, I'mgoingto kill you" as he puthis foot through the front door ofthe tent and 2No. 32114-2-III State v. Anders pulled onthe top ofthe tent. 4 VRP (Oct. 28, 2013) at 618. Anders grew frightened and wanted to protect Stokes. Anders believed Burtkilled someone before, a beliefthat contributed to Anders' fear. Burthadpreviously told Anders ofthe former's conviction for voluntary manslaughter. Anders knew ofBurt'sreputation for aggressiveness. According to Dean Anders, Richard Burt enteredthe tent and attacked Jacqueline Stokes. In response, Anders struck Burt in the chestwith his shoulder and knocked Burt out ofthe tent. The two men then wrestled on the ground. Anders then remarked: "Richard, go home. You're drunk." 4 VRP (Oct. 28, 2013) at 624. Burt fled into the woods, where Anders heard Burt scream he was going to kill Anders and Stokes. Richard Burt, while still yelling, returned to DeanAnders' tent. Anders exited the tent. Burt lunged at Anders and cut Anders' arm. Anders concluded thatBurtpossessed

a knife. Anders grabbed a framing hammerto protecthimselfand Stokes. When Burt charged a secondtime, Anders wrestled Burttothe ground and repeatedly struck Burt's backwith the hammer. When Burtreached for Anders, Anders struck him in the hands with the hammer. According to Dean Anders, during his struggle with Richard Burt, he grew winded from asthma and sufferedpain from his degenerative disc disease. Anders knew he must quickly act to prevent Burt from overpoweringhim. Anders swung the hammer at Burt's neck and knocked him down. Burtrose from the ground, and Anders, in fear for his life, struck Burt'sknees with the hammer. Burtremained on the ground, and Anders returned 3

### No. 32114-2-111 State v. Anders



### to his tent. During trial testimony, Anders denied striking Burt onthe top ofthe head with the hammer. He claimed Burt's head injuries resulted from Burtrunning into a tree. PROCEDURE The State ofWashington charged DeanAnders and John Hill with first degree assault with a deadly weapon, a framing hammer with a waffle head. The State tried Anders and John Hill together. Duringthejury selectionprocess, Anders and the State exercised theirperemptory challenges silently on a sheet ofpaper, which was filed after trial with the court clerk. The trial court instructed thejury on self-defense. Thejuryconvicted Dean Anders, but acquitted John Hill. The trial court conducted a sentencing hearing, during which Richard Burt, Burt's fiancee Carla Swift, and Dean Anders spoke. The State requested the court sentence Anders for two hundred and forty months and impose $10,849.76 in restitution with the option oflater adding to the restitution ifBurt incurred more medical expenses. Burt requested a sentence ofone year for every time Anders hit him, which, according to the State, would be a sentence ofthirty-five years. At the sentencing hearing, Dean Anders requested an exceptional reduced sentence ofeighty-four months. To support the low sentence, Anders offeredtwo
reasons authorized underRCW 9.94A.535: (1) Anders acted in self-defense and (2) Burt
was the initial aggressor. Atthe conclusion ofthe hearing, the trial court stated: 4i

# I ! I 

# I ! 

### No. 32114-2-111 State v. Anders 

### I, ofcourse, have to honor thejury's decision. I will say that 1-1 don'tknow that I will ever know exactly what happened out there. And I know that you have claimed all along that this was self-self-defense. And I'm not necessarily going to comment on the facts here. Butthe law does allow apersonto defend themselves. And, of course, ifyou were being attacked, ifyou feared for your safety or your life, you're allowed to defend yourself. The assault on Mr. 

### Burt, though, was very, very significant and severe. And even ifyou were in fear for your safety, in fear for your life, the-the injuries were so significantthat it's difficult to fathom, you know, exactly what-whatwent on up there and what happened. And I-andI recall the state making a very-fairly significant case with regard to thewhere the injuries occurred and-andthat sort ofa thing. But again, this-thiswas a very significant assault. And I know the state is asking for the high end, and Iknow Mr. Burt would like more than the standard sentence range even allows. I'm going to impose 180 months, and that's about 15 years plus the enhancement of24. There's no magic to my sentence here other than, Mr. Anders, I know you're-you'retearful. I can'ttell ifyou're remorseful. You've apologized
...

. . .but I don'treally sense that you're taking real responsibility for it. And that's okay. You don't-you don'thave to do that. 5 VRP (Nov. 15, 2013) at 859-62. The trial court sentenced Anders to a standard range sentence oftwo hundred and four months' confinement and awarded $10,849.76 in restitution. Thejudgment and sentence entered by the trial court included a markedbox next to the statement: "The defendant waives any right to be present at any restitution hearing (sign initials):

___________." Clerk's Papers (CP) at 49. Also, section 2.2 ofthe criminal history section ofthejudgment and sentence, belowthe list ofAnders'



### 5No. 32114-2-111 State v. Anders prior criminal convictions, read: "*DV: Domestic Violence was pied and proved." CP at 44. This language also appeared in section 2.1 (current offenses). Section 2.3 ofthe sentencing data section, following a boxto enter information about the offender score and seriousness level ofthe charged crime, stated: *(F) Firearm, (D) Other deadly weapons, (V) VUCSA in a protected zone, (RPh) Robbery ofapharmacy, (VH) Vehicular Homicide, See RCW 46.61.520, (JP) Juvenile present, (CSG) criminal street gang involving minor, (AE) endangerment while attempting to elude, (ALF) assault law enforcementwith firearm, RCW 9.94A.533(12), (P16) Passenger(s) under age 16. CP at 45. In a later order, the trial court amended thejudgment and sentence to declare $10,865.55 as the amount owing in restitution. The order noted: "no further restitution will be ordered." CP at 75. The amendedrestitution amount is $15.79 more than the original restitution amount. The amended order does 

### nqt explainthe added amount. LAWAND ANALYSIS Public Trial Right On appeal, Dean Anders contends that the trial court erred in conductingthe peremptory challenge portion ofthejury selectionprocess mutely by paper..The State responds that selection ofajuryby silentperemptory challenges does not implicatethe rightto apublictrial. Based on Supreme Courtprecedence, we hold the preemptory challengeprocess did not violate Anders' public trial right.

6No. 32114-2-111 

### State v. Anders
Public trial rights are bestowed by sections 10 and 22 ofarticle I ofthe Washington Constitution, which protectboth the defendants' right to have the public present, and the public's rightto an open trial. 

### State v. Love, 183 Wn.2d 598, 604-05, 354 P.3d 851 

### (2015),petitionfor cert.filed, 84 U.S.L.W. 3441 (U.S. Feb. 8, 2016) (No. 15-1007). A criminal defendant has a right to a "speedypublic trial" under section 22, and section 10 guarantees to the public that "[j]ustice in all cases shall be administered openly." These provisions serve complementary and interdependent functions in assuring the fairness ofourjudicial system. 

### State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d 325 (1995). When a defendant asserts that the trial courtbreachedhis public trial right, we first ask ifthe right attached to the discrete procedure during trial thatthe defendant challenges. 

### State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012). We next ask whether the trial court closed the courtroom. 

### State v. Love, 183 Wn.2d at 605. Finally,

we ask ifthe closure wasjustified. 

### State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). 

### State v. Love controls DeanAnders' public trial rights assignment oferror. In 

### Love, the Washington high court noted thatthepublic trial right attaches tojury selection, including for cause and peremptory challenges, butthe court held that writtenperemptory challenges do not constitute a closure. 

### Love, 183 Wn.2d at 607. The courtreasoned:

7No. 32114-2-111 State v. Anders Although Love argues for a broad rule that all peremptory challenges must be spoken aloud, writtenperemptory challenges are consistent with the public trial right so long as they are filed in the public record. Spokenperemptory challenges certainly increase the transparency of jury selection, butthere are still legitimate methods ofchallengingjurors in writing, like the practice here, that do not amountto a courtroom closure because they are made in open court, on the record, and subjectto public scrutiny. Love, 183 Wn.2d at 607. Exceptional Sentence Dean Anders contends that the trial court failed to consider onthe record his request for an exceptional sentence below the standard range. He asks for a resentencing. The State responds that the trial court considered Anders' request for an exceptional sentence. We agree withthe State. The trial court may impose an exceptional sentence belowthe standard range ifit finds mitigating circumstances by a preponderance ofthe evidence. RCW 9.94A.535(1). These mitigating circumstances include: (a) To a significant degree, the victim was an initiator, willing participant, aggressor, orprovoker ofthe incident. (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficientto constitute a complete defense but which significantly affected his orher conduct. RCW 9.94A.535(1). A failed self-defense claim may qualify as a mitigating factor under RCW 9.94A.535(l)(c). State v. Pascal, 108 Wn.2d 125, 137, 736 P.2d 1065 (1987). RCW 9.94A.585(1) declares: "A sentence withinthe standard sentence range ... 8No. 32114-2-111 State v. Anders

for an offense shall not be appealed." Based on this statute, a sentence within the standardrange is not subjectto appellate review. State v. Ammons, 105 Wn.2d 175, 182, 713 P.2d 719, 718 P.2d 796 (1986). The requirement that a trial court "setforth the

reasons for its decision in written findings offact and conclusions oflaw" is limited by the legislature to sentences outside the standard sentence range. RCW 9.94A.535. The effect ofa standard range sentence is to create a presumptionthatthe courtproperly exercised its discretion. Ammons, 105 Wn.2d at 183. Despite this nearly uncompromising rule, a defendant may appeal the procedure the trial court followed when imposing a sentence. State v. Knight, 176 Wn. App. 936, 957, 309 P.3d 776 (2013), review denied, 179 Wn.2d 1021, 318 P.3d 279 (2014). While

no defendant is entitled to an exceptional sentence belowthe standard range, every defendant is entitled to ask the trial courtto consider such a sentence and to have the alternative actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1138 (2005). Failure to consider an exceptional sentence is reversible error. State v. Grayson, 154 Wn.2d at 342. When a defendanthas requested an exceptional sentence, ourreview is limited to circumstances when the trial court refusedto exercise discretion at all orrelied on an impermissible basis for refusing to impose an exceptional sentence belowthe standard range. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). An impermissible basis for declining a.request for an exceptional sentence includes race, sex, 9No. 32114-2-III State v. Anders

orreligion. Garcia-Martinez, 88 Wn. App. at 330. A trial court may consider such subjective factors as problems related to a particular offender, the offender's social situation, and the impact onthe community when imposing a sentence. State v. Osman, 157 Wn.2d 474, 482, 139 P.3d 334 (2006). A courtrefuses to exercise its discretion ifit refuses categorically to impose an exceptional sentence belowthe standard range under any circumstances. Garcia-Martinez, 88 Wn. App. at 330. State v. Grayson, 154 Wn.2d 333 (2005), illustrates a trial court's categorical refusal to impose an exceptional sentence. John Grayson requested a Drug Offender Sentencing Alternative (DOSA) as part ofhis sentence for delivery ofcrack cocaine, but the trial court denied the request stating: The motion for a DOSA
... is going to be denied. Andmymain reasonfor denying [the DOSA 

## Jis because of thefact that the State no longer has moneyavailable to treatpeople who go through a DOSA program. So I think in this case ifI granted him a DOSA it would be merely to the effect ofit cutting his sentence in half. I'm unwilling to do that for this purpose alone. There's no money available. He's not going to get any treatment; it's denied. Grayson, 154 Wn.2d at 337 (emphasis in original) (alterations in original). Our Supreme Courtheldthatthe trial court abused its discretion when it refused to impose a DOSA sentence because it failed to consider a statutorily authorized sentencing scheme, regardless ofits suitability for the particular defendant. DeanAnders' trial court did not categoricallyrefuse to exercise its discretion by

10No. 32114-2-111 State v. Anders sentencing Anders within the standard range. The trial court gave no indication it would deny all requests for exceptional sentences belowthe standardrange. The court did not rely on an impermissible basis in denying his request for an exceptional sentence. The trial court listened to bothparties and the victim, recognized that DeanAnders raised a self-defense claim, identifiedthe severity ofthe victim's injuries, conceded it cannot determine the exact events, and imposed a standard range sentence. The trial court emphasized the severity ofthe assault and the victim's injuries. Dean Anders complains that the trial court impermissibly based its decision on his disproportionate use offorce in self-defense. Nevertheless, proportionality offorce is not
an impermissible basis for denying an exceptional sentence. Dean Anders argues that the trial court abused its discretion by not declaring on the record its reasons for rejecting his exceptional sentence request. We disagree. The trial court mentioned the intensity ofDean Anders' attack and the severity ofRichard Burt's injuries as reasons. The trial court was notrequired to dictate every factual and legaljustification for denying Anders' request for an exceptional sentence. DeanAnders relies on State v. Hampton, 107 Wn.2d403, 409, 728 P.2d 1049 (1986), which held that the trial court must give some reason on the record as to rejecting

a defendant'-s request so that this court may review the decision. Nevertheless, Hampton dealt with bail forfeiture and not a discretionary decision to impose an exceptional sentence. No Washington case specifically requires on the record dictation ofthe reasons 11No. 32114-2-III State v. Anders
for denying a request for an exceptional sentence. The legislature intendedto prevent excessive review ofstandard range sentences. ScrivenerErrors Dean Anders contends that hisjudgmentand sentence contains two scrivener

errors that should be corrected on remand. The first error is a checkedboxthatwaives his right to be present at any restitution hearing. The State agrees thatthejudgmentand sentence incorrectly indicatedthat Anders waivedhis right to be present at restitution hearings. The State argues that the assignment oferror is moot because Anders attended the hearing whenthe trial court imposed restitution and an order states that "no further restitution will be ordered." CP at 75. Appellate courts may remand a case solely for correction ofa scrivener's error in a judgment and sentence in orderto ensure that the document accurately reflects the sentence the trial court intended. State v. Healy, 157 Wn. App. 502, 516, 237 P.3d 360 (2010). Nevertheless, this court generally declines reviewing an assignment oferror when the issue presented is moot. In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 (1983); In re Det. of R.R., 77 Wn. App. 795, 799, 895 P.2d 1(1995). A case is moot when it involves only abstract propositions orquestions, the substantial questions in the trial court no longer exist, or a court can no longerprovide effective relief. Spokane Research & DefFundv. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005); State v. Slattum, 173 Wn. App. 640, 647, 295 P.3d 788 (2013). We decline to remand for 12No. 32114-2-111 State v. Anders
correction ofthe first scrivener's errorbecause the error is moot. The second alleged error is the statementwithin section 2.2 Criminal History, which states "*DV: Domestic Violence was pled andproved." CP at 44. The State claims that the presence ofthe statementregarding domestic violence is boilerplate language. The State argues thejudgmentreflects no error because the trial court did not declare that any ofAnders' convictions involved domestic violence. There was no checkmarkby the entry. We agree with the State. DeanAnders misunderstands the domestic violence designation. A review ofthe judgment and sentence reveals that boilerplate portions ofthe form provide simple abbreviations for common designations in different sections ofthe form. For example, in section 2.3 Sentencing Datathe form lists (F), (D), (V), (RPh) (VH), (JP), (CSG), (AE), (ALF), and (P16). CP at 45. Each has a corresponding meaning so these abbreviations may be used in the sentencing data section. The statementregarding domestic violence is another recommended abbreviation tool for both sections 2.1 and 2.2. Thejudgmentand sentence does not contain a "DV" notation in any ofthe criminal history boxes and thus it accurately indi.cates no DVpresent in Anders' criminal history. CONCLUSION We affirm thejudgment against and sentence ofDean Anders. A majority ofthe panel has determined this opjnion will notbeprinted in the

13No. 32114-2-111 State v. Anders Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. 

# .1&1f; 

# ,:r· Fearing, A~. WE CONCUR:

Pennell, J.

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