Opinion
No. 51513-6-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 91-1-00534-1. Judgment or order under review. Date filed: 11/12/2002. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant(s), Pondexte Bryant — Doc #920218 (Appearing Pro Se), King County Correctional, 620 W. James St., Kent, WA 98032.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
In 1991, a jury convicted appellant Pondexter Bryant of burglary, attempted rape, and unlawful imprisonment, all arising from an incident in which he brutally attacked his ex-wife while their children were present. The court understood the standard range sentences for these crimes to be 67-89 months for the burglary, 22-29 months for unlawful imprisonment, and 119 to 158 months for the attempted rape. The sentencing court chose the top end of the range for each crime — 89 months, 29 months, and 158 months respectively. Then, having found grounds to impose an exceptional sentence, the court structured the sentences for attempted rape and unlawful imprisonment to be consecutive, for a total of 187 months (29 plus 158), to be followed by two years of community placement. The 89-month burglary sentence was set to run concurrently to the other two sentences. In 1993, upon Bryant's appeal, this court upheld both the conviction and the exceptional sentence.
Bryant filed a personal restraint petition in November 2001, requesting resentencing on several grounds. In the course of responding to Bryant's petition, the State discovered a problem that all concerned had previously overlooked. When Bryant committed the crime, attempted first-degree rape was a class B felony with a maximum sentence of 120 months. The 158 month term of imprisonment imposed for that crime was unlawful because it was in excess of the statutory maximum. The State conceded that resentencing was necessary to make the sentence lawful. Bryant agreed, and moved for an immediate remand for resentencing while acknowledging that the basis for relief was different from the grounds alleged in his petition. This court granted his motion and remanded "for resentencing" as soon as practicable.
Bryant claims that at the time of resentencing, he had already served 151 months. Bryant took the position that the only option available to the court was to reduce the sentence for attempted rape from 158 months to the maximum term of 120 months, thereby shortening his total prison term to 149 months. Instead, the court revised the entire sentence. The court reduced the sentence for attempted rape to the statutory maximum term of 120 months, reduced the term for the burglary sentence to 67 months, and ordered those two sentences to run consecutively, with the 29-month sentence for unlawful imprisonment sentence to run concurrently. The net result was a prison term of 187 months, the same length as in the original sentence.
In this appeal from the sentence imposed on remand, Bryant renews the argument that principles of double jeopardy and due process preclude any alteration of the sentence except to reduce the sentence for attempted rape to the statutory maximum (and thereby to reduce his total prison term). His argument depends entirely on the notion that the three components of his original sentence cannot be treated as a package. He contends the sentences for burglary and unlawful imprisonment were valid and final when first entered, and therefore cannot now be changed in any respect.
This court rejected a similar argument in State v. Larson, 56 Wn. App. 323, 783 P.2d 1093 (1989). In that case, the jury convicted the defendant of murder, rape and arson, all arising from his attacks on his wife and her children on the same night. The trial court sentenced him to a total of 363 months (30 years and 3 months) comprised of consecutive standard range sentences for each crime: 281 months for murder, 41 months for rape, and 41 months for arson. This was an exceptional sentence because the sentences were set to run consecutively, but the court did not enter the required findings, and the result was a remand for resentencing. On remand, the court realized that the same result could be achieved without an exceptional sentence simply by imposing 360 months on the murder conviction (a term that was within the standard range for murder) and having the other sentences run concurrently. The court imposed that new sentence.
The defendant in Larson appealed on due process and double jeopardy grounds. The essence of his argument was an attempt to characterize the new sentence as having increased the original consecutive 281-month murder sentence to a concurrent 360-month sentence. He relied on the presumption of vindictiveness that is said to arise when, following a successful appeal, a defendant receives a more severe sentence on remand as a punishment for having exercised the right to appeal. See North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The Pearce presumption was of no avail to the defendant in Larson, however, because his aggregate sentence was no more severe than his original sentence. Larson lists numerous cases which demonstrate that the Pearce presumption of vindictiveness does not arise where a revised aggregate sentence is less than or equal to the original aggregate sentence. Larson, 56 Wn. App. at 326-27.
Bryant did not get a more severe sentence. He got an aggregate sentence of exactly the same length as the one originally imposed. The sentencing court originally determined that an exceptional sentence was justified, and 187 months was the appropriate length of that sentence. At that time, the court could have structured the sentence in several different ways to achieve the objective of a sentence of 187 months, without exceeding the maximum term for any of the convictions. Due process does not require the lawful intention of the sentencing court to be frustrated merely because no one noticed that the sentence as originally constructed was defective. Bryant attempts to distinguish Larson on the basis that the original defect in that sentence — the lack of findings to support the exceptional sentence — affected all three sentences, whereas here, according to Bryant, the original defect affected only the sentence for attempted rape. But we see no reason to suppose that Larson is confined to its facts. Treating the sentence as an aggregate is more consistent with the fundamental due process problem that Pearce was concerned with, i.e., to avoid vindictiveness in resentencing. When the total sentence does not go up, but remains consistent with the trial court's original sentencing intent, "there is no hint of retaliation, and certainly no reasonable probability of actual vindictiveness." Larson, 56 Wn. App. at 328. As in Larson, the trial court here did not violate due process principles on remand by restructuring the defendant's sentence so that it would carry out the intention of the court's original sentence. Larson, 56 Wn. App. at 328.
Larson likewise explains why Bryant's new sentence does not violate the protection provided by the double jeopardy clause of the Fifth Amendment against multiple punishments for the same offense. By appealing a portion of a sentence, "the defendant in effect challenges the entire sentencing plan, and, thus, has no legitimate expectation in the finality of any discrete part of the original sentence, whether or not that discrete part is legal in isolation, and whether or not the defendant has begun serving it." Larson, 56 Wn. App. at 329. Accord, United States v. Moreno-Hernandez, 48 F.3d 1112 (9th Cir.), cert. denied, 515 U.S. 1151, 115 S.Ct. 2598, 132 L.Ed.2d 844 (1995) (resentencing mandate from an appellate court authorizes the district court to impose any sentence which could lawfully have been imposed originally).
In an ordinary sentencing proceeding like Bryant's, where the court on remand has the duty to correct an erroneous sentence, the defendant's legitimate expectation of finality in the original sentence is the analytical touchstone for double jeopardy. State v. Hardesty, 129 Wn.2d 303, 315, 915 P.2d 1080 (1996). The defendant in Hardesty benefited from this rule. He was released from prison after serving a sentence. After his release, the State discovered that the sentence had been based on an inaccurate rendition of Hardesty's criminal history, and should have been longer. At the State's request the trial court resentenced Hardesty, adding more time. The reviewing court concluded that to resentence Hardesty was a double jeopardy violation, because he had a legitimate expectation of finality in his original sentence once it was fully served. Hardesty, 78 Wn. App. 593, 599, 897 P.2d 1282 (1995).
In Hardesty, the Court discussed two circumstances that would negate any expectation of finality in a fully served sentence. Hardesty, 129 Wn.2d at 315. One is fraud; a defendant cannot have a legitimate expectation of finality in a sentence fraudulently obtained. Because the State failed to prove that Hardesty committed fraud to obtain his original sentence, the new sentence had to be vacated. Hardesty, 129 Wn.2d at 318-19. Another circumstance is the one discussed in Larson; a defendant does not acquire a legitimate expectation of finality in a sentence, even it has been fully served, if the defendant "was on notice the sentence might be modified" due to a pending appeal. Hardesty, 129 Wn.2d at 312.
Bryant contends that under Hardesty, he had a legitimate expectation of finality in his 89-month burglary sentence because he had fully served it, and therefore the court could not change its length or convert it from a concurrent sentence to a consecutive sentence. This argument fails. Having employed the review process of a personal restraint petition to request resentencing, Bryant was on notice that the entire sentence could be altered and even increased. See Hardesty, 129 Wn.2d at 313. Under Larson, the entire sentencing plan was at issue. The original sentence was illegal, and the illegality affected the entire sentence because it frustrated the lawful intent of the original sentencing plan. See Larson, 56 Wn. App. at 238. Because Bryant had no legitimate expectation of finality in any part of his total sentence once he subjected it to a review process, there was no double jeopardy violation when the trial court imposed a new sentence that altered the component parts.
To support his argument that the concurrent nature of his burglary sentence was not subject to change, Bryant relies on Brooks v. Rhay, 92 Wn.2d 876, 877, 602 P.2d 356 (1979). Brooks does not support his argument. The court stated, "Where a sentence is legal in one part and illegal in another, the illegal part, if separable, may be disregarded and the legal part enforced." Brooks, 92 Wn.2d at 877. But the court also stated that an aggregate sentence is indivisible if the court set the component sentences on the assumption that they would be served concurrently. Brooks, 92 Wn.2d at 877. Because the sentence in that case was indivisible, the court held the parole board did not have the unilateral authority to change the sentences from consecutive to concurrent; the matter had to be remanded to the trial court for correction of the error. Similarly here, the original aggregate sentence was indivisible because the court set the component sentences on the assumption that they would total 187 months. Despite Bryant's attempt to confine the trial court's review to the attempted rape sentence, the proper remedy upon discovery of the error was to remand to the trial court for correction of the entire sentence. See also Jones v. Thomas, 491 U.S. 376, 386,109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) ("There is no indication that the order of the sentences was of the slightest importance to the sentencing judge, and there is no reason constitutional adjudication should turn on such fortuities.").
Bryant argues his new sentence was improper because it was based on his record of infractions while in custody. The State did urge the court to impose a more severe sentence based on Bryant's conduct while in prison, but we need not decide the merits of the State's argument below because the sentencing court did not adopt it, as shown by the fact that the court did not impose a more severe sentence. The court stated:
I remain of the opinion that 187 months was the appropriate — it's not like we thought he was a choir boy and his conduct in prison has disappointed us. I had no illusions that he was going to be a model prisoner when I sentenced him to 187 months in prison.
We conclude Bryant's allegation that the trial court relied on his infraction history is without merit.
The amended judgment and sentence impose a 24-month term of community placement on Bryant's attempted rape conviction only. Bryant has filed a pro se statement of additional grounds for review pursuant to RAP 10.10, alleging that because he received the statutory maximum sentence of 120 months for that conviction, he cannot be required to serve an additional two years in community custody. Bryant's issue is premature because he may earn early release time, and in that case he could serve time in community placement without exceeding the 10-year statutory maximum punishment. See State v. Vanoli, 86 Wn. App. 643, 937 P.2d 1166 (1997).
Affirmed.
KENNEDY and APPELWICK, JJ. concur.