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State Of Washington, Respondent V Byron J. Finister, Appellant

Case Date: 06/01/2012

 
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Court of Appeals Division II
State of Washington

Opinion Information Sheet

Docket Number: 41542-9
Title of Case: State Of Washington, Respondent V Byron J. Finister, Appellant
File Date: 06/01/2012

SOURCE OF APPEAL
----------------
Appeal from Pierce County Superior Court
Docket No: 10-1-02732-9
Judgment or order under review
Date filed: 12/03/2010
Judge signing: Honorable Ronald E Culpepper

JUDGES
------
Authored byJill M Johanson
Concurring:J. Robin Hunt
Lisa Worswick

COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
 Valerie Marushige  
 Attorney at Law
 23619 55th Pl S
 Kent, WA, 98032-3307

Counsel for Respondent(s)
 Stephen D Trinen  
 Pierce County Prosecutors Ofc
 930 Tacoma Ave S Rm 946
 Tacoma, WA, 98402-2102
			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41542-9-II

                             Respondent,

       v.

BYRON JEFFERY FINISTER,                                    UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  A jury found Byron Finister guilty of felony violation of a court order.  

The underlying facts are not relevant to our decision.  The trial court imposed a standard range 

sentence of 25 months of confinement.  But it did not afford him his right of allocution under 

RCW 9.94A.500(1) before imposing that sentence.  He appeals1 and asks to be resentenced by a 

different judge after being afforded his right to allocution.  State v. Aguilar-Rivera, 83 Wn. App. 

199, 203, 920 P.2d 623 (1996).

       The State concedes that the trial court did not afford Finister his right to allocution.  But it 

argues that Finister failed to object to not being afforded his right to allocution and cannot raise 

the issue for the first time on appeal.  State v. Hughes, 154 Wn.2d 118, 152-53, 110 P.3d 192 

(2005), overruled in part on other grounds in Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 

2546, 165 L. Ed. 2d 466 (2006).

       We agree with the State and conclude that Finister cannot raise this issue for the first time 

on appeal.  Finister points to State v. Roberson, 118 Wn. App. 151, 160-62, 74 P.3d 1208 (2003), 

1 A commissioner of this court initially considered Finister's appeal as a motion on the merits 
under RAP 18.14 and then transferred it to a panel of judges. 

No. 41542-9-II

in which we remanded for resentencing where the trial court had failed to afford a juvenile 

defendant his right to allocution.  But to the extent it allowed the defendant to raise that issue for 

the first time on appeal, it has been effectively overruled by Hughes.

       We affirm Finister's sentence.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

                   Hunt, J.

                 Worswick, C.J.

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