Seattle City Attorney asks for freedom for man convicted 72 times

City Attorney asks for freedom for man convicted 72 times (PHOTO: KOMO News)

It’s a mid-November afternoon at the corner of Broadway and East Pine on Seattle’s Capitol Hill. Mat Xavier is minding his own business, listening to music on his headphones when a man he doesn’t know, punches him in the mouth.

“I was shocked — I was suckered punched by this man,” Xavier said. “The man didn’t appear to have any real motive.”

Xavier suffered a bloodied lip, but had the wits about him to record on his smartphone his assailant wandering the corner. He called 911 and police arrested his attacker without any issues.

“What struck me as odd is that he didn’t run away. He just stood there in a daze,” Xavier said.

His attacker is 55-year-old Francisco Calderon, who lists a home address in North Seattle. At the time of the assault he was homeless, having just been released one week earlier from state custody, said the judge in the case.

His criminal history is lengthy. According to the judge in the case, he’s had 72 convictions, including 14 assaults. He’s been under the supervision of the Department of Corrections 14 separate times.

A criminal watch report from the State Patrol listed 44 convictions in Washington, including 14 felonies, but most of his convictions are misdemeanors. He told probation officers he was a methamphetamine and cocaine user, stole to buy drugs and he hasn’t had a steady job since the 1990s.

He immediately pleaded guilty to 4th degree assault for punching Xavier.

But it was the sentencing recommendation by City Attorney Pete Holmes that have his critics saying: he goes light on habitual offenders.

Prior to sentencing, the city prosecutor and Calderon’s public defender, Stuart Moore, agreed to a plea deal.

It would have required Calderon to get a mental health evaluation, enroll in substance abuse treatment and agree to 2 years probation. He would also be released back on the street with credit for time served, which at the time of sentencing was 50 days in jail.

When the case was first brought to Seattle Municipal Court Judge Ed McKenna for sentencing on Dec. 10, he questioned the Assistant City Attorney about the plea deal in light of his Calderon’s long criminal history. The city attorney stood by the deal.

McKenna then asked that Calderon undergo a pre-sentencing review so he could better understand Calderon’s personal history before passing judgement. He also asked the Assistant City Attorney to review the plea deal, a message which could be interpreted as he was unhappy with it.

When the court’s probation department first contacted Calderon for the review, he refused to participate, telling officers “I don’t give a crap."

Just days before a second sentencing hearing in January, he agreed to the review.

When sentencing day arrived, he refused to appear in court. McKenna had to sign an order for two marshals to forcibly remove Calderon from his jail cell. Calderon arrived in court handcuffed and chained around the waist with two marshals standing over him.

“I’m sorry for what happened,” he told the judge. “I should have been put on probation from the last time and that didn't happen.”

Moore pleaded his case for probation and treatment.

“I think it's in the community's best interest to receive this kind of treatment and rehabilitation,” Moore told the judge. “He’s clearly got the message that's he's on thin ice.”

McKenna again asked the Assistant City Attorney if she wanted to changed the plea deal in light of new information found in the pre-sentencing review. It outlined situations where Calderon failed to enter substance abuse treatment and had issues during probation for other convictions.

The Assistant City Attorney said the plea deal had not changed.

McKenna then gave him the maximum possible penalty for 4th degree assault — 364 days in jail.

“I’m not sure I have ever seen a more significant history of violent offenses,” McKenna said in court. “Everything in that criminal history tells me that he’s a violent offender and is going to re-offend."

McKenna said he had to weigh public safety of the people of Seattle versus Calderon’s willingness to accept the terms of probation and a commitment to treatment.

“As a judge, I have a duty and responsibility to protect the citizens of Seattle and impose a sentence that I think is going to provide protection,” McKenna said in court. “I don't think this court is willing to risk having someone else assaulted.”

“I respectfully disagree,” City Attorney Pete Holmes said after reviewing the case.

“I think our prosecutors wisely saw this is an opportunity to see if we could get a different outcome,” said Holmes, who believes structured treatment with supervised probation is a better alternative than jail time in many cases.

“In the name of public safety I question whether it’s really been served here,” Holmes said.

But this case epitomizes the frustrations many people have about crimes being perpetrated by the homeless and what some consider the City’s lenient policies when it comes to crimes committed by people living on the street.

“It’s frustrating for us who have to keep picking up the same person over and over,” said one Seattle Police officer who did not want to be identified.

A 2018 research study, done by the Department of Criminal Justice at Seattle University, showed a decrease in misdemeanor arrest cases referred to the City Attorney’s office for prosecution and charges, from the time Holmes took office in 2010. The study covered a nine year period from 2008 until 2016.

“It was pretty consistent across the board,” said Jacqueline Helfgott, Director of the Crime and Justice Research Center at Seattle University and co-author of the study.

“It doesn't necessarily mean that misdemeanor crime is declining,” said Helfgott. “It could be a policy change, could be legislative change or how the City Attorney views certain crimes.”

She said the study was strictly numbers based and was not intended to provide reasons why there was a decrease.

“It could be that crime itself is going down. I think that in the cynical discourse we have in public today, people just assume that someone is not doing their job,” said Holmes.

The City Attorney said Judge McKenna went against the advice of police officers, defense council, his office and the court’s probation department by “throwing the book at him.”

“Everyone but the judge thought that (the plea deal) would get us the better outcome from a public safety standpoint,” Holmes said. “This gentleman's lengthy criminal history is the very result of short-sighted imposition of judgement, of punishment and then we are shocked to know he's continuing to repeat.”

McKenna made it clear in his verbal ruling he wanted Calderon off the streets at least for a year. Holmes says with good behavior, Calderon could be back on the streets in June without the requirement to seek probation.

Holmes was asked if he thought the verdict was sending a message to him.

“You’ll have to asked the judge,” he said.

McKenna declined our request for an interview, as did Calderon, who also did not want his attorney to speak on his behalf.

As with any case, a public safety judgement was made. Judge McKenna telling Calderon “he wasn’t buying” his commitment to seek treatment and locking him up, and Seattle’s City Attorney believing jail in this case was the wrong option.

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