Opinion
No. 51931-0-I.
Filed: April 5, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-1-02769-6. Judgment or order under review. Date filed: 02/21/2003. Judge signing: Hon. Douglas McBroom.
Counsel for Appellant(s), Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Pros Office, W 554, 516 3rd Ave, Seattle, WA 98104-2390.
A defendant is entitled to a fair sentencing hearing. If the defendant's standard range is incorrectly calculated, the defendant is entitled to a de novo sentencing hearing unless it is clear, given the correct standard range, that the trial court would have imposed the same sentence.
Here, defendant's offender score was originally calculated using two prior juvenile convictions. After the Supreme Court's decision in State v. Smith, 144 Wn.2d 665, 30 P.3d 1245, 39 P.3d 294 (2001), defendant's prior juvenile convictions `washed' and he moved for resentencing. Using the correct offender score, defendant's standard range was identical to the standard range considered by the original sentencing court. We affirm the sentence because (1) the technical correction of the offender score did not reopen all sentencing issues, (2) the defendant was not entitled to reconsideration of his request for an exceptional sentence, and (3) the defendant waived any argument that the assault and robbery constituted the same criminal conduct because he did not raise the issue before the original sentencing court.
FACTS
Lewis James Brooks III was charged with a several crimes stemming from two incidents, one involving his friend, Ebony Farmer, and one involving his sister, Marguerite Brooks.
February 3, 1998 Incident
On February 3, 1998, Officer Wesley Buxton arrived at Ebony's residence after a 911 hang-up call had been placed from that residence. When Buxton arrived, Ebony told him that Brooks had come to the house and they had an argument. During the argument, Brooks told Ebony that she `owed' him for something and hit her. Brooks then took one or two necklaces from around her neck and put them into his pocket. The altercation continued until Ebony's mother separated them. Ebony's mother called 911 and Brooks left. Ebony told Buxton that Brooks threatened her and her family. Both Ebony and her mother gave statements to Buxton and signed them. At trial, however, both Ebony and her mother recanted their stories and said that Brooks did not take the necklaces, did not hit Ebony, and did not threaten anyone.
March 8, 1998 Incident
On March 8, 1998, Officers James Wolf and Ian Caanan responded to a 911 call at the residence of Marguerite Brooks, defendant's sister. Marguerite gave a statement to the officers. According to that statement, Brooks went to Marguerite's house to collect money that she owed him. Brooks and Marguerite got into an argument and Brooks hit and kicked her. Brooks also told Marguerite that he would kill her and pointed a gun to her head and pulled the trigger. The gun did not fire. Before leaving, Brooks took three necklaces from Marguerite's neck. Arletha Brooks, also defendant's sister, was on the phone with someone in the house during the altercation. She heard Brooks yelling in the background and called 911. She told the operator, `my brother's out in Federal Way right now beating up my little sister.' Trial RP 802. The 911 operator called the residence, but Brooks hung up when he discovered who it was. The 911 operator called back again and spoke with Marguerite, who described what had happened. When the police arrived, Marguerite signed a sworn statement describing the events.
At trial, Officer Caanan testified that Marguerite told him that Brooks took the necklaces right before he left. The sequence of events in the certificate of probable cause, however, was different, listing the robbery before the assault.
At trial, however, Marguerite testified that she was on drugs during the incident and that she lied to the 911 operator and the police to try to get out of paying the money she owed to Brooks. Arletha also testified that she called the police because Marguerite asked her to and that she and Marguerite lied to get Brooks arrested so that they would not have to repay money that they both owed to him. Another sister, Michelle Brooks, testified that Brooks did not pull a gun on Marguerite and did not assault her.
Brooks was convicted of two counts of second degree robbery and one count of second degree assault, with firearm enhancements for the robbery and assault against Marguerite. At the original sentencing hearing, in a letter to the judge, Brooks requested an exceptional sentence downward, arguing that he was not guilty of the crimes. The court calculated Brooks' offender score as 12. Brooks did not dispute the calculation and did not argue that the robbery and assault constituted the same criminal conduct. The trial court sentenced Brooks within the standard range. Brooks appealed his convictions on issues unrelated to the sentence. The Court of Appeals affirmed the convictions in an unpublished decision. State v. Lewis J. Brooks III, No. 43006-8-I, (Wash. January 31, 2000).
Brooks did not make the same criminal conduct argument during his first appeal.
After the Washington State Supreme Court issued its opinion in Smith, Brooks filed a motion for resentencing under CrR 7.8(b)(4) and (5) and RCW 10.73.100. The State conceded that Brooks' offender score should be 10 rather than 12.
In Smith, the court held that the 1997 amendments to the SRA (Sentencing Reform Act) could not be applied retroactively and, thus, the defendants' juvenile convictions were improperly revived. Because Brooks' original offender score was calculated using two juvenile convictions that had `washed out,' Brooks' offender score was a 10, rather than a 12 as originally calculated.
Under CrR 7.8(4) and (5) a party can be relieved of final judgment if the judgment is void or there is `[a]ny other reason justifying relief from the operation of the judgment.'
RCW 10.73.100(6) allows a judgment to be collaterally attacked beyond the one-year time limit when:
`There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.'
Brooks characterizes the State's concession as an agreement that a new sentencing hearing was appropriate. The State, however, clearly stated that it was only conceding the need for a technical correction of the offender score and not to the reopening of all sentencing issues.
At the resentencing hearing, Brooks again requested an exceptional sentence downward, arguing: (1) the victims were initiators, aggressors, and provokers; (2) the victims recanted their testimony; and (3) the sentence was excessive in light of the purposes of the SRA because the victims were not in danger from him. He also argued that two of his current convictions constituted the same criminal conduct. The resentencing court denied Brooks' request for an exceptional sentence:
But I would not give an exceptional sentence. I watched the videotape of Judge Street. And he heard the trial. And he had before him Mr. Brooks' letter [requesting an exceptional sentence]. So he considered an exceptional sentence.
There's no indication in the tape that he didn't consider an exceptional sentence under the guidelines that are given for imposing an exceptional sentence, even if Mr. Brooks didn't artfully raise all those guidelines.
And he heard the whole trial. And he saw no reason for an exceptional sentence. And so taking it sort of de novo, I would agree with Judge Street because he is in a much better position than I am to make that determination anyway.
Additionally, the resentencing court found that Brooks' current convictions were not the same criminal conduct. The correction in offender score did not change Brooks' standard range, so the resentencing court did not reconsider the original sentence. Brooks filed a timely notice of appeal.
DISCUSSION
The first issue we address is whether the resentencing court erred in failing to reconsider Brooks' request for an exceptional sentence below the standard range.
Brooks argues that his first sentence was invalid and, therefore, he was entitled to a de novo sentencing hearing. The State, on the other hand, argues that the purpose of the resentencing hearing was to make a technical correction to the offender score in light of the Smith decision, and as such, Brooks was not entitled to reopen all sentencing issues. In making his argument, Brooks relies on State v. Harrison, 148 Wn.2d 550, 61 P.3d 1104 (2003); State v. Parker, 132 Wn.2d 182, 937 P.2d 575 (1997); and State v. Barberio, 121 Wn.2d 48, 846 P.2d 519 (1993).
In Parker, the defendant was convicted of one count of first degree rape and two counts of first degree child molestation for acts that occurred between 1987 and 1991. In its verdict, the jury did not specify the year in which the acts occurred. In 1991, the legislature amended the SRA and significantly increased the standard range for first degree rape and first degree child molestation. At sentencing, the trial court used the amended SRA to determine Parker's standard range, even though the jury verdict did not specify when the acts occurred. An exceptional sentence was imposed by running the sentences consecutively.
Parker appealed his sentence, arguing that the standard range was incorrect because the standard ranges under the amended SRA were used without requiring the State to prove that the acts occurred after the amendment. The Court of Appeals agreed that the standard range may have been incorrect, but held that any error in the standard range was harmless. The Supreme Court, however, disagreed and held that `when the sentencing court incorrectly calculates the standard range before imposing an exceptional sentence, remand is the remedy unless the record clearly indicates the sentencing court would have imposed the same sentence anyway.' Parker, 132 Wn.2d at 189. The court also quoted language from State v. Collicott, 118 Wn.2d 649, 660, 827 P.2d 263 (1992), stating: `Imposition of an exceptional sentence is directly related to a correct determination of the standard range. That determination can be made only after the offender score is correctly calculated.' Parker, 132 Wn.2d at 189.
Brooks argues that he is entitled to a de novo sentencing hearing because a correct calculation of his offender score is required before his standard range can be determined. The State, on the other hand, distinguishes Parker and argues that because Brooks' sentencing range was correctly calculated, he is not entitled to a de novo sentencing hearing. The standard ranges based on both the original and corrected offender scores are the same. The original sentencing court considered whether an exceptional sentence was warranted based on the standard range imposed by the legislature. Because the standard range is the same, it is clear that the sentencing court would impose the same sentence with an offender score of 10 or 12.
Brooks' basic argument before the original sentencing court in support of his request for an exception sentence was that he was not guilty of the crimes. This argument is not related to the offender score. Additionally, the factors presented to the resentencing court have nothing to do with his offender score. Before the resentencing court, Brooks argued that: (1) the victims were initiators, aggressors, and provokers; (2) the victims recanted their testimony; and (3) the sentence was excessive in light of the purposes of the Sentencing Reform Act (SRA) because the victims were not in danger from the defendant.
Brooks also relies on Harrison, 148 Wn.2d 550. In Harrison, the State agreed to treat two of the defendant's convictions as the same criminal conduct as part of the plea agreement, making defendant's offender score a seven. At sentencing, however, the State breached the plea agreement and presented an offender score of eight. The trial court sentenced Harrison based on an offender score of eight and imposed an exceptional sentence. Harrison appealed the sentence and the Court of Appeals remanded the case for a new sentencing hearing, ordering the State to abide by the plea agreement. At the new sentencing hearing, the trial court agreed that the offender score should be seven, but refused to reconsider the imposition of the exceptional sentence. The trial court stated that it was bound by the `law of the case' doctrine or collateral estoppel and could not reconsider the issue. Harrison appealed and the Court of Appeals affirmed the trial court's decision. The Washington State Supreme Court, however, reversed the decision and held `that the remedy of specific performance entitles the defendant to a reversal of the original sentence and a de novo sentencing hearing in which the State will abide by its plea agreement.' Harrison, 148 Wn.2d at 554. The court concluded that `collateral estoppel does not apply because the original sentence no longer exists as a final judgment on the merits.' Harrison, 148 Wn.2d at 561. Additionally, the court concluded that the `law of the case' doctrine did not apply. The case here, however, is distinguishable because this was not a case of specific performance. The State did not breach a plea agreement, and the new sentencing hearing was held merely to adjust the offender score because of the Smith decision. Also, the issue before this court is not whether the trial court was precluded from reconsidering Brooks' issues under the law of the case doctrine or collateral estoppel, but whether the resentencing court erred in refusing to do so.
Additionally, Brooks relies on Barberio, 121 Wn.2d 48, in arguing that the trial court should have reconsidered his request for an exceptional sentence. Brooks' reliance, however, is misplaced. In Barberio, the defendant was convicted of second degree rape and third degree rape and given exceptional sentences. Barberio appealed his convictions, but did not appeal the exceptional sentences. The Court of Appeals affirmed the second degree rape conviction, but reversed the third degree rape conviction. At resentencing, Barberio challenged the exceptional sentence and argued that the reduction in offender score and standard range as a result of the dismissal mandated a proportional reduction in the exceptional sentence on the remaining second degree conviction. The resentencing court imposed the same exceptional sentence for the second degree rape conviction. The Court of Appeals affirmed the exceptional sentence. The Washington State Supreme Court accepted review `to clarify the rationale' and affirmed the exceptional sentence. The court stated that both the trial court and appellate court can "exercise independent judgment as to decisions to which error was not assigned in the prior review, and these decisions are subject to later review by the appellate court." Barberio, 121 Wn.2d at 50. The court also noted that `[i]t is discretionary for the trial court to decide whether to revisit an issue which was not the subject of appeal.' Barberio, 121 Wn.2d at 51 (emphasis added). The court then looked at the resentencing court's decision to see if it had, in fact, exercised its discretion to independently review the exceptional sentence. The court concluded that the resentencing court did not independently review the exceptional sentence, and it affirmed the sentence. In doing so, the court stated:
This case well illustrates the necessity of the rule which denies review at this last stage. The issue presented was a clear and obvious issue which could have been decided in 1990 in the first appeal. Instead of a timely and orderly proceeding to determine the matter on the merits, the State, the Court of Appeals, a department of this court, and allied staff, have had to deal with a procedural morass, all of which could have been avoided had the matter been raised when it should have been in the first appeal. In the interest of judicial economy, already too much wasted, we hereby affirm the Court of Appeals without further proceedings.
Barberio, 121 Wn.2d at 52. Thus, Barberio stands for the proposition that a resentencing court may independently review issues not raised before the appellate court, but does not mandate independent review. In fact, the discussion by the court suggests that independent review in these circumstances is not in the interest of judicial economy. The resentencing court did not independently reconsider the exceptional sentence. It is clear from the record that the court relied on the decision of the original sentencing court because the original court was in a better position to make the determination. As the court stated in Barberio, the issues here were `clear and obvious' and should have been addressed by the original sentencing court that was in the best position to decide these issues. Therefore, the resentencing court did not err in refusing to exercise its discretion in reconsidering the exceptional sentence.
The resentencing court's statement that it was taking the issue `sort of de novo,' does not indicate that it independently considered the sentence. The trial court's statements, taken as a whole, clearly show that it deferred to the original sentencing court's decision.
The next issue we address is whether Brooks waived his right to argue that the crimes against Marguerite were the same criminal conduct by not raising the issue at his original sentencing hearing. The State relies on In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002) to argue that Brooks waived his argument regarding same criminal conduct. Goodwin did not involve an argument regarding same criminal conduct, but did address the general issue of waiver:
Accordingly, we hold that in general a defendant cannot waive a challenge to a miscalculated offender score. There are limitations to this holding. While waiver does not apply where the alleged sentencing error is a legal error leading to an excessive sentence, waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion.
Goodwin, 146 Wn.2d at 874 (second emphasis added). In making this argument, the Supreme Court discussed State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000). In Nitsch, the defendant agreed to his offender score at the sentencing hearing. On appeal, Nitsch argued that his offender score was incorrect because some of the crimes constituted the same criminal conduct. The Court of Appeals held that Nitsch could not bring this argument for the first time on appeal:
Only an illegal or erroneous sentence is reviewable for the first time on appeal. Application of the same criminal conduct statute involves both factual determinations and the exercise of discretion. It is not merely a calculation problem, or a question of whether the record contains sufficient evidence to support the inclusion of out-of-state convictions[.]
Nitsch, 100 Wn. App. at 523 (emphasis added). While Nitsch involved raising an issue for the first time on appeal and Brooks' first attempted to raise the issue at a resentencing hearing, the same rationale applies. As stated in Nitsch, the determination of whether two crimes constituted the same criminal conduct involves both determinations of fact and an exercise of judicial discretion and, thus, a defendant may waive the argument under Goodwin. We hold that Brooks waived the argument regarding same criminal conduct because he did not raise it before the original sentencing court.
The court in Nitsch also noted that in some cases, it could be to the defendant's disadvantage to raise the same criminal conduct argument before the trial court because it might be inconsistent with the defendant's other arguments. Allowing the defendant to raise the same criminal conduct argument for the first time on appeal would allow the defendant to try out different versions of the case in an attempt to get a more favorable decision. It is not clear whether it would have been inconsistent for Brooks to make this argument at his original sentencing, but there is a general policy rationale against letting defendants make multiple, inconsistent arguments before different courts.
Even if waiver did not apply, the robbery and assault were two distinct crimes with distinct purposes and therefore were not the same criminal conduct.
Affirmed.
AGID and BAKER, JJ., concur.