Opinion
No. 37673-3-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04489-0, Lisa R. Worswick, J., entered March 28, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridgewater, J.
Steven A. Haggard appeals the sentence imposed by the Pierce County Superior Court following remand from this court. His counsel on appeal has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Theobald, 78 Wn.2d 184, 470 P.2d 188 (1970), stating that there are no non-frivolous issues for appeal and requesting permission to withdraw. Counsel suggests two potential issues: (1) the trial court violated Haggard's right to a speedy resentencing, and (2) the court abused its discretion in ordering that his current sentence be consecutive to a sentence previously imposed. Haggard has filed a statement of additional grounds, in which he, too, challenges the denial of his motion to reconsider the consecutive/concurrent decision. We affirm.
A commissioner of this court initially considered the matter pursuant to RAP 18.14 and referred it to a panel of judges.
FACTS
In 2005, a jury convicted Haggard of first degree unlawful possession of a firearm, unlawful possession of a controlled substance while armed with a firearm, and making a false statement to a public servant. The court sentenced him to 87 months for possession of the firearm and 42 months for the drug possession, plus 18 months for the firearm enhancement. It ordered 9 to 12 months of community custody on the drug conviction and made the sentences concurrent, except for the firearm enhancement, which it was required to make consecutive to all other confinement. It imposed no time for the false statement conviction. The court also denied Haggard's motion to make the sentences in this case concurrent with a 120-month sentence imposed four months earlier in another case, cause no. 04-1-01936-4.
Haggard appealed. We affirmed the convictions but remanded for resentencing, holding that the combination of the 42-month sentence, 18-month enhancement, and community custody resulted in a term of confinement that exceeded the statutory maximum for the drug possession conviction. See State v. Haggard, noted at 135 Wn. App. 1041 (2006), review denied, 161 Wn.2d 1018 (2007).
Upon remand, the trial court modified the drug sentence to 30 months of incarceration, plus the enhancement and the term of community custody. Haggard asked the court to reconsider its decision on his motion for concurrent sentences in this case and cause No. 04-1-01936-4.
The court denied that request and he appeals.
ANALYSIS
Counsel first questions whether the court violated Haggard's right to be promptly resentenced. We remanded the case on October 11, 2007, after the Supreme Court denied review of our decision. The trial court set a hearing for November 21, 2007, but reset it twice, ultimately hearing the matter on February 6 and March 28, 2008.
Former RCW 9.94A.500 (2000) requires the court to hold a sentencing hearing within 40 days of the defendant's conviction. There is no specific time limit for resentencing. However, a delay that is "purposeful or oppressive" violates speedy sentencing rights. Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). In determining whether there is a violation, we balance the length and reason for the delay, the defendant's assertion of his right to a speedy sentence, and the extent of prejudice to the defendant. State v. Modest, 106 Wn. App. 660, 663, 24 P.3d 1116, review denied, 145 Wn.2d 1010 (2001).
Haggard did not object to the continuances and asked for the last one, himself. The first hearing occurred about four months after remand. Haggard still had many years of his sentence to serve in cause No. 04-1-01936-4. There is nothing to suggest that the four-month period was either purposeful or oppressive or that it prejudiced him.
Counsel also questions whether the court abused its discretion in refusing to make the sentences in this case and cause No. 04-1-01936-4 concurrent. At the resentencing hearing, the trial court had the discretion to consider this issue even though Haggard did not raise it in his first appeal. See State v. Davenport, 140 Wn. App. 925, 932, 167 P.3d 1221 (2007), review denied, 163 Wn.2d 1041 (2008).
When a person is sentenced for a felony that was committed while that person was not under sentence for conviction of a felony, the sentence is to be concurrent with prior sentences unless the court imposing the current sentence expressly orders it to be consecutive. RCW 9.94A.589(3).
A decision under this statute rests within the sound exercise of the sentencing court's discretion. See In re Pers. Restraint of Long, 117 Wn.2d 292, 305, 815 P.2d 257 (1991). The judge told Haggard that she had "thought long and hard" about the sentence and that she had decided not to make this sentence concurrent with the previous one in cause no. 04-1-01936-4 because of the number of charges and the guns involved. Report of Proceedings (Mar. 28, 2008) at 9. There was no abuse of discretion in this ruling.
As required by the Anders procedure, we have independently reviewed the record provided on appeal and have found no error in either the issues raised by counsel or any other matter. Accordingly, the sentence is affirmed. The defense counsel's motion to withdraw is denied without prejudice pending compliance with RAP 18.3(a)(2).
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and VAN DEREN, C.J., concur.