Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 84982-0
Title of Case: State v. Weaver
File Date: 04/07/2011
Oral Argument Date:


SOURCE OF APPEAL
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Appeal from King County Superior Court
03-1-05381-0
Honorable Sharon S. Armstrong


JUSTICES
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COUNSEL OF RECORD
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Counsel for Petitioner(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Brian Martin McDonald
King County Prosecuting Attorney
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104







IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
NO. 8 4 9 8 2 - 0
Respondent,

v. EN BANC

OLIVER W. WEAVER, JR.,

Petitioner.

Filed April 7, 2011

PER CURIAM -- This court previously granted Oliver Weaver's petition for

review of a Court of Appeals decision affirming his sentence for second degree child

rape and second degree rape, remanding to that court for reconsideration in light of

State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009). On remand, the Court of

Appeals adhered to its original decision. Weaver again petitioned for review. Because

Mendoza clearly entitles Weaver to relief, we grant review, reverse the Court of

Appeals, and remand to the superior court for further proceedings.

No. 84982-0 Page 2

A jury convicted Weaver of second degree rape of a child and second

degree rape. The jury returned a special verdict finding that the victim was a child and

that Weaver impregnated her. The State sought an exceptional sentence based on these

findings. The trial court ordered the Department of Corrections to prepare a

presentence investigation report and directed Weaver to submit to an interview with

the department. But the report was never completed because Weaver failed to appear

for the interview.

At sentencing the trial court remarked that it had not received "the State's

normal sentencing package." Report of Proceedings (Apr. 8, 2005) at 371. The deputy

prosecutor submitted his office's presentence statement (including a recitation of

Weaver's criminal history), mentioning that Weaver had two previous burglary

convictions. Defense counsel acknowledged without elaboration that Weaver had a

criminal history. Counsel also informed the court that Weaver did not submit to a

presentencing interview because counsel was unavailable. Counsel did not think it

efficient for the court to order a rescheduled interview.

The court counted the prior burglary convictions in calculating Weaver's

offender score. The State informed the court that the two rape convictions merged for

sentencing purposes. But the court imposed an exceptional sentence consisting of

consecutive prison terms, basing the sentence on the victim's impregnation. Weaver

did not object at the sentencing hearing.

Weaver appealed his sentence on several grounds, including the criminal

history used to determine his offender score. The Court of Appeals denied the State's

motion to supplement the record with the State's copy of what it claimed was a

No. 84982-0 Page 3

Department of Corrections presentence report. But the court affirmed the sentence,

holding that Weaver acknowledged his criminal history by not objecting. State v.

Weaver, 140 Wn. App. 349, 166 P.3d 761 (2007), disapproved by Mendoza, 165

Wn.2d 913.

Weaver petitioned for review in this court. After Mendoza became final, the

court granted the petition and remanded the matter to the Court of Appeals for

reconsideration in light of that decision. State v. Weaver, 166 Wn.2d 1014, 212 P.3d

557 (2009). On remand the Court of Appeals granted the State's renewed motion to

supplement the record with what the court described as the Department of Corrections

"statement of criminal history." The court then issued an unpublished decision

affirming Weaver's sentence, reasoning that Weaver acknowledged his criminal

history by not objecting to the department's "criminal history report," which the court

determined had been before the trial court. State v. Weaver, noted at 156 Wn. App.

1015 (2010); see also former RCW 9.94A.530(2) (2000). Weaver again petitioned for

review.

In Mendoza we held that the term "presentence reports" in former RCW

9.94A.530(2) did not include the prosecutor's statement of criminal history. Mendoza,

165 Wn.2d at 925. The presentence report is the report issued by the Department of

Corrections pursuant to CrR 7.1. See Mendoza, 165 Wn.2d at 922-24. No such report

was issued in this case, since Weaver did not submit to an interview, a required

component of a presentence report. See CrR 7.1(b). The department instead issued a

"SPECIAL FACESHEET" explaining the department's inability to complete the

report. There is no competent evidence in the record that the trial court had before it a

No. 84982-0 Page 4

copy of this special face sheet at the time of sentencing.1 The Court of Appeals

therefore should not have relied on it. Under the circumstances, Weaver did not

"affirmatively acknowledge" his criminal history as required by Mendoza. 165 Wn.2d
at 929.2

The Court of Appeals is reversed and the matter is remanded to the trial
court for further proceedings consistent with this opinion.3

1 A deputy prosecutor's declaration, alleging that he confirmed with the trial
court bailiff that the trial court had the Department of Corrections "presentence report" in
its file, is uncorroborated. As noted, the department never issued a presentence report.
Moreover, the document added to the appellate record is the State's file copy of the
special face sheet, not a paper filed in the trial court at the relevant time.
2 Weaver argued for the first time on remand that the trial court violated
double jeopardy principles in failing to merge his two rape convictions. See State v.
Womac, 160 Wn.2d 643, 650, 160 P.3d 40 (2007). The Court of Appeals properly
declined to consider that issue because it exceeded the scope of remand. But Weaver may
raise the double jeopardy issue at resentencing.
3 Whether the State may attempt to prove Weaver's criminal history on
remand is not before us. See generally State v. Bergstrom, 162 Wn.2d 87, 169 P.3d 816
(2007).