[No. 57691-7-I. Division One. August 27, 2007.]
[1] Statutes — Construction — Legislative Intent — Statutory Language — Plain Meaning. A court interprets a statute to discern and implement the legislature's intent. The court begins with the plain language of the statute and its ordinary meaning. When the plain language is unambiguous, the legislative intent is apparent. [2] Statutes — Construction — Considered as a Whole — In General. A court interprets a statute by examining the provision in relation to other provisions to seek a consistent construction of the whole. [3] Criminal Law — Punishment — Sentence — Criminal History — Prior Convictions — Proof — Presentence Report — What Constitutes — In General. For purposes of RCW 9.94A.530(2), which provides that information stated in presentence reports is acknowledged if no objection is raised thereto, "presentence reports" are not limited to documents prepared by the Department of Corrections at the trial court's request under RCW 9.94A.500 and include reports from other sources. [4] Criminal Law — Punishment — Sentence — Criminal History — Acknowledgment by Offender — Failure To Object to Statement in Presentence Report — Statutory Provisions — Effect. A convicted offender's failure to object to a statement of criminal history contained in or appended to a presentence report can constitute an acknowledgment of that history under RCW 9.94A.530 that may relieve the State of its burden of proving such history. Nature of Action: Prosecution for second degree rape and second degree rape of a child with the consequence of impregnating a minor. Superior Court: The Superior Court for King County, No. 03-1-05381-0, Sharon S. Armstrong, J., on April 8, 2005, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the defendant acknowledged his criminal history by failing to object to the State's report of his criminal history in a presentence report, the court affirms the judgment. Nancy P. Collins- (of Washington Appellate Project), for appellant. Daniel T. Satterberg-, Interim Prosecuting Attorney, and Brian M. McDonald-, Deputy, for respondent. ¶1 ELLINGTON, J. — Oliver Weaver raped and impregnated a 13 year old girl. He was convicted of second degree rape and second degree rape of a child with the consequence of impregnating a minor. In the unpublished portion of this opinion, we uphold the verdict and reject two of Weaver's challenges to his sentence. In the published portion of this opinion, we reject Weaver's third challenge to his sentence, disagree with a recent decision of Division Two of this court, and hold that the term "presentence reports" in RCW 9.94A.530 includes criminal history information submitted by the State. Under that statute, Weaver's failure to object to the State's report of his criminal history constituted an acknowledgement of its truth, and the trial court was entitled to rely upon it when calculating his offender score. We thus affirm Weaver's sentence. BACKGROUND ¶2 Oliver Weaver, a man in his 40s with a wife and child, operated a used car lot. In October 2002, he called 13 year old R.T. and her cousin over as they walked past the lot and asked them if they wanted a job washing cars and cleaning his house. R.T., who had never met Weaver before, accepted his offer and began working for him a few afternoons per week. Coincidentally, R.T.'s mother and Weaver discovered they knew each other from about 25 years before. ¶3 One afternoon in early December 2002, R.T. was cleaning Weaver's house. Weaver approached R.T. from behind and told her if she did not do as he wished, he would kill her. He then violently raped her for somewhere between 15 and 45 minutes. Weaver had a weapon, which R.T. thought was a bb gun. ¶4 R.T. was frightened by Weaver's threats and did not report the rape. She worked at Weaver's home a few times over the next several weeks because her mother needed money, but in January, she told her mother she did not want to work there anymore. In February 2003, afraid she was pregnant, R.T. told a school friend what Weaver had done. The friend informed a school security guard, who called police. ¶5 R.T.'s doctor confirmed she was pregnant. On the advice of her mother and doctor, she had an abortion. A fetal tissue sample was collected, and the State's DNA expert calculated a 1 in 240 million probability that Weaver was not the father. According to the expert, a probability of merely one in 1,000 that a donor is not the father is a "very strong indication" of paternity. ¶6 Following trial, Weaver was convicted by a jury of rape of a child in the second degree and rape in the second degree with the consequence of impregnating a child. DISCUSSION ¶7 Weaver challenges his offender score, contending the State failed to prove that his prior burglary convictions had not "washed out." ¶9 If a defendant disputes facts material to the sentence, the State must prove the disputed facts by a preponderance of the evidence, (2) In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports. ¶10 In its presentence statement, the State submitted a criminal history sheet titled, "Appendix B to Plea Agreement/Prosecutor's Understanding of Defendant's Criminal History." ¶11 At sentencing, the principal issue was whether Weaver should receive an exceptional sentence. The offender score nonetheless had to be calculated. The prosecutor referred to the "two points" stemming from the burglary convictions. ¶12 When we interpret statutes, we must discern and implement the intent of the legislature. ¶13 We first address a recent decision by Division Two, State v. Mendoza. ¶14 The Mendoza court also relied upon State v. Lopez. ¶15 Relying on these cases and others, the Mendoza court concluded that no authority existed providing that anything other than a report ordered from DOC could constitute a presentence report. ¶16 We respectfully disagree. Ford, Lopez, and the other cases cited in Mendoza all involve something beyond the mere fact of a conviction. Nothing in those cases, in our view, addresses the question presented here and in Mendoza. We look, instead, to the language of the statutes, and draw a different conclusion. ¶17 RCW 9.94A.500 governs procedures before sentencing. It requires the court to request presentence reports from DOC in only two situations: where a defendant is convicted of a felony sex offense or shows signs of mental illness: In addition, the court shall, at the time of plea or conviction, order the department [DOC] to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense. . . . If the court determines that the defendant may be a mentally ill person . . . , the court shall order the department to complete a presentence report before imposing a sentence. The same statute itemizes other information to be considered at sentencing: "The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history." ¶18 This language is plain. First, the term "presentence reports" is plural, in contrast to the singular "risk assessment report," and therefore necessarily contemplates more than one source. Second, the term "presentence reports" includes, at the least, any victim impact statement and any statement of criminal history. DOC does not prepare victim impact statements, so it is difficult to see how a DOC report can be the only authorized presentence report. Further, criminal history is defined by statute as "the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere." ¶19 Nor does this interpretation conflict with due process. A criminal sentence must have some basis in the record. The State's presentence statement is not the meanderings of a stranger to the case; it is part of the record. A defendant can put the State to its affirmative burden of proof merely by objecting either before or during the sentencing hearing. Absent objection, the facts are in the record, and the record satisfies due process. ¶20 The purpose of the acknowledgement statute is to focus time and effort on those occasions where the facts are disputed. Limiting the definition of presentence reports contravenes this purpose, and we see nothing in the statute to support the limitation. ¶21 Recent Washington cases support our interpretation. In State v. Grayson, ¶22 Weaver failed to object and thereby acknowledged his criminal history. There was no error, and we affirm. ¶23 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040. COLEMAN and DWYER, JJ., concur.