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FILED
COURT O APPEALS
LJ z i4 eL it
2013 JUL -9 AM 9; 10
Ski
8Y
IN THE COURT OF APPEALS OF THE STATE OF WASE
DIVISION II
STATE OF WASHINGTON, No. 43098 -3 -II
Respondent,
V.
UNPUBLISHED OPINION PETER JAMES DAVIS, Appellant.
TOLLEFSON J.P.
T.Peter James Davis pleaded guilty to five counts of violating a domestic violence court order and the trial court imposed a 90 -month exceptional sentence. Davis appeals, asserting that he should be allowed to withdraw his guilty pleas because they were entered in violation of his due process rights. Davis also asserts that the trial court's imposition of an exceptional sentence violated his jury trial right. We affirm.
FACTS
The State charged Davis with 10 counts of violating a domestic violence court order after Davis made telephone calls from the Lewis County Jail to the protected party'stelephone number. Each of the State'scharged counts alleged two aggravating factors: (1)Davis's unscored criminal history would result in a presumptive sentence that is clearly too lenient and 2)Davis'smultiple offenses and high offender score would result in some current offenses
Judge Brian M.Tollefson is serving as judge pro tempore of the Washington State Court of Appeals,Division II,under CAR 21(c).
going unpunished. Davis agreed to plead guilty in exchange for the State dropping five of the ten charged counts. Davis signed a plea statement that provided in part:
7.
I plead guilty to: count[s]I -V:Violation of a Court Order [ in the] 2nd Amended Information. I have received a copy of that Information.

8.
I make this plea freely and voluntarily.

9.
No one has threatened harm of any kind to me or to any other person to cause me to make this plea.

10.
No person has made promises of any kind to cause me to enter this plea except as set forth in this statement.

11.
The judge has asked me to state what I did in my own words that makes me guilty of this crime. This is my statement: Between 5 -31 -11 and 7 -1 -11 on five sep[a]


rate occasions I knowingly violated a [domestic violence] no contact order by contacting . . . the protected party in the order. I have had two prior convictions for violating a court order.
Clerk'sPapers (CP)at 49. Davis'splea statement also stated that the prosecuting attorney would
recommend that the trial court sentence Davis to 60 months incarceration but further provided:
The judge does not have to follow anyone'srecommendation as to sentence. The judge must impose a sentence within the standard range unless the judge finds
substantial and compelling reasons not to do so. I understand the following regarding exceptional sentences:
ii)The judge may impose an exceptional sentence above the standard range if I am being sentenced for more than one crime and I have an offender score of more than
CP at 45.
The trial court held a plea hearing on February 15,2012. After the State informed the trial court that it was no longer alleging sentencing aggravators,the trial court asked Davis, "You understand that I'm not.bound by anybody'sdeals or anybody'srecommendations and I could impose any sentence up to the maximum ?" Report of Proceedings (RP)at 5. Davis responded affirmatively. The trial court accepted Davis'sguilty pleas,finding that the pleas were made voluntarily,competently, with an understanding of the nature of the charge and the
consequences of the plea [and that]there is a factual basis for the plea."RP at 7. The trial court then proceeded to sentencing.
At the start of the sentencing hearing,Davis'sdefense counsel stated that there needed to be a change to Davis'sprior criminal history stipulation because the stipulation incorrectly listed two prior felony convictions for violations of a no contact order,when only one of the prior no contact order violations was a felony and the other was a misdemeanor. The trial court then struck the word "felony"from one of the convictions for violation of a no contact order listed in Davis'sstipulated prior criminal history and reduced Davis'sstipulated offender score to "IL" The trial court informed Davis that the change in his offender score did not change the standard range sentence and confirmed that.Davis agreed to the changes in his stipulated prior criminal history and offender score.
During the sentencing hearing,the State told the trial court that Davis had tried to contact the subject of his domestic violence court order 217 times. Defense counsel objected, arguing that the trial court should limit its consideration to the facts concerning -the five counts to which Davis pleaded guilty. Thetrial court overruled defense counsel'sobjection. Later, -
the trial court believed that Davis was "smiling"or "smirking"and it asked Davis, "Is this funny ?" RP at 17,
15. Davis replied, "Yeah,I think it is. But I have nothing to say."RP at 15. The trial court then
stated:
THE COURT]:All right. Question then, counsel....
For the unscored criminal history ... and the aggravators here,I want to hear from the State on the aggravators and the multiple current offenses, some going unpunished. I'll hear from the State on that. I know this was not part of any plea agreement. I want to hear from the State on my authority to impose time on those.
RP at 15. The State responded by presenting a police report concerning all the incidents forming
the bases for its original charges against Davis,as well as a defendant case history (DCH)
printout purporting to list Davis'scriminal history. Defense counsel stated that the defense did
not agree with all of the allegations contained in the DCH printout or the police report,noting
that Davis had only acknowledged the convictions included in his criminal history stipulation.
The trial court orally ruled:
All right. I'm going to impose a sentence of 90 months in the Department of Corrections. Finding the aggravating circumstances, that there is unscored criminal history, that the sentence here would clearly be too lenient, also, a finding that the multiple current offenses, some of which are in effect going unpunished given the offender score of five counts here, several of them are again, given the sentencing range at a maximum of 60 months are going unpunished. That and Mr.Davis's clearly unrepentant attitude here tells me that the sentence of 60 months is clearly too lenient. So the sentence is going to be 90 months,credit for time served for the 57 days.
RP at 18. The trial court also entered the following written findings of fact in support of its
imposition of an exceptional sentence:
a)The defendant has extensive unscored criminal history. b)Given the defendant'sconduct, the standard range sentence would result in a sentence that is clearly too lenient.

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