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Spokane, Washington  Est. May 19, 1883
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Sentence put off in baby death

Robert Doney Jr.’s scheduled sentencing today for spitefully murdering his girlfriend’s baby has been postponed because he wants to take back his guilty plea.

Doney, 29, claims in court documents filed by his court-appointed attorney, Tim Trageser, that his March 16 admission of first-degree murder was invalid because his legal strategy was built on shifting sand. Doney says he wouldn’t have pleaded guilty if he could have foreseen a subsequent state Supreme Court decision.

Spokane County Superior Court Judge Jerome Leveque plans to hear Doney’s motions on July 13. If Doney loses, he could be sentenced that day.

At the center of the dispute is a U.S. Supreme Court ruling last June that partially invalidated Washington’s sentencing guideline law. The court said defendants are entitled to have a jury determine all facts used to justify an above-standard sentence.

Previously, judges could identify aggravating factors and give extra-long sentences on their own. The high court ruling created confusion and paralysis in trial courts. Doney’s situation is an example.

He was three days into his jury trial when he pleaded guilty as charged. Until then, Trageser had been trying to convince the jury that Doney’s girlfriend, Joan Richards, was responsible for the death of her 2-year-old daughter, Victoria Ramon.

Spokane County Prosecutor Steve Tucker and Deputy Prosecutor Larry Steinmetz presented evidence that Doney deliberately killed the toddler because he was angry at Richards. Then Doney admitted murdering the child by shoving her into a door frame of the apartment he shared with her mother at 1412 W. Dean.

“I will accept and deserve to be punished,” Doney said.

But only within the standard range of 203/4 to 271/2 years in prison, according to a court document Trageser filed earlier this month.

Trageser said his strategy had been to convince the jury to find Doney guilty only of second-degree murder or first-degree manslaughter if he couldn’t shift the blame to Richards. That strategy was frustrated by Judge Leveque’s decision to take advantage of what the Washington Court of Appeals had recently said was his power to slap a splint on the state’s fractured sentencing law.

Judges are empowered to impanel juries to consider aggravating factors, even after a defendant has pleaded guilty, the Court of Appeals ruled. Trageser concedes Leveque was following the best law available at the time when he allowed Tucker and Steinmetz to charge Doney with three aggravating factors – deliberate cruelty, multiple injuries and “extreme lack of remorse” – to be decided by the trial jury.

When Doney pleaded guilty in midtrial, Leveque kept the jury in session to take additional testimony on one of the aggravating factors. Trageser argued unsuccessfully that Leveque lacked authority to retain the jury, and the jury ruled March 18 that all the aggravating factors were valid.

Then the state Supreme Court ruled on April 14 that the Court of Appeals was wrong when it said trial judges could impanel juries to hear aggravating factors in cases that appellate courts had sent back for resentencing.

“To create such a procedure out of whole cloth would be to usurp the power of the Legislature,” the Supreme Court said.

Trageser argues in court documents that the state Supreme Court decision “completely negates” the possibility of an above-standard sentence for Doney. And that erased Doney’s reason for pleading guilty, Trageser says.

With no fear of Leveque giving Doney an above-standard manslaughter sentence that exceeded a maximum-standard first-degree murder sentence, Doney might as well have taken his chances at trial, Trageser argues.

But the state Supreme Court ruling didn’t address Doney’s situation, according to Deputy Prosecutor Kevin Korsmo, who specializes in appeals.

“We do not decide here whether juries may be given special verdict forms or interrogatories to determine aggravating factors at trial,” the court wrote in its opinion.

That issue is to be decided in a group of pending test cases, including one from Spokane. The group represents cases in which aggravating factors are presented to juries during a trial.

One of the test cases involves the second-degree murder charge pending against Spokane resident James C. Metcalf, who is awaiting trial for allegedly strangling Denise M. McCormick in February 2004 and dumping her body in southern Stevens County.

The Supreme Court heard arguments in the test cases on March 24, but a decision isn’t expected for months because legislation to repair the sentencing-guideline law took effect April 15. Defense attorneys recently were given until mid-July to respond to prosecutors’ written arguments that the law applies to cases pending at the time it took effect.

Trageser and Korsmo agree that the issue looms large over Doney.

While conceding that Leveque’s improvisation “seems consistent” with what the Legislature adopted, Trageser insists the sentencing-law amendment isn’t retroactive and Leveque had no valid authority. Korsmo believes the legislation does apply retroactively to cases already in progress.

The argument turns in large measure on whether the amendment simply makes “procedural” changes or substantially alters the sentencing law.

If the amendment is procedural – substituting one fact-finder for another – as Korsmo contends, then it likely is retroactive. If substantive – altering the burden of proof and transferring power from judges to prosecutors – as Trageser believes, the amendment may not be retroactive.

Even if the amendment isn’t retroactive, Korsmo said, “it’s far less than clear that Doney would be home free. … I think it’s going to be many months until we know how this shakes out.”

If the revised law is retroactive and applies to Doney, one of the aggravating factors his jury found may have to be discarded. Lack of remorse isn’t among 25 factors prosecutors must choose among when seeking extra-tough sentences.

The aggravating factors must be filed along with other charges to put defendants on notice that they may face above-standard punishment. A jury finding of even one factor would justify a sentence up to the statutory maximum – life in prison for first-degree murder.

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