Opinion
41214-4-II
01-31-2012
STATE OF WASHINGTON, Respondent, v. CHARLES CARROLL HARTZELL, IV, Appellant.
UNPUBLISHED OPINION
QUINN-BRINTNALL, J.
On March 3, 2008, a jury found Charles C. Hartzell, IV guilty of first degree unlawful possession of a firearm, contrary to RCW 9.41.040(1)(a), and second degree assault, contrary to RCW 9A.36.021(1)(c). The jury also delivered a special verdict, finding that the assault was committed with a deadly weapon contrary to former RCW 9.94A.602 (1983). At sentencing, the trial court erroneously added a 36-month firearm enhancement to Hartzell's second degree assault conviction, rather than the 12-month enhancement required by the jury's deadly weapon finding. State v. Hartzell, 156 Wn.App. 918, 926, 237 P.3d 928 (2010). On remand, Hartzell attempted to challenge his criminal history for the first time, arguing that some of his previous convictions should be treated as the "same criminal conduct" for purposes of calculating his offender score. The trial court ruled that Hartzell's previously determined offender score was the "law of the case" and not under consideration at the resentencing. Report of Proceedings (RP) (Sept. 16, 2010) at 12.
Hartzell appeals, arguing that the trial court improperly denied him the opportunity to challenge the prosecutor's calculation of his offender score. Also, in a statement of additional grounds (SAG), Hartzell alleges that (1) the State failed to prove his criminal history by sufficient evidence because the State did not produce certified copies of his previous judgments, (2) the prosecutor created an impermissible conflict of interest when he filed the certificate of probable cause because he allegedly acted as both an advocate and witness, and (3) the trial court erred in denying him the right of allocution. Because the scope of this court's remand to the trial court contemplated only a ministerial correction, Hartzell's argument that the remand gave the trial court authority to conduct a full resentencing lacks merit. Hartzell's other arguments also lack merit. Accordingly, we affirm.
RAP 10.10.
FACTS
Following his convictions, Hartzell appeared pro se with standby counsel at his original sentencing on March 7, 2008. At that proceeding, the State admitted certified copies of Hartzell's prior judgments and sentences. After reviewing the certified copies with his standby counsel, Hartzell acknowledged them, stating, "[I]t appears that [they are] correct." RP (March 7, 2008) at 7. The trial court sentenced Hartzell to 120 months confinement: 84 months on the second degree assault conviction, with a 36-month firearm enhancement, and 102 months on the unlawful firearm possession conviction to run concurrently. The trial court also sentenced Hartzell to 18 to 36 months of community custody on the assault conviction. Hartzell appealed the judgment and sentence, arguing that the jury verdict did not support a firearm sentence enhancement. Hartzell did not challenge his offender score or the criminal history presented to calculate it.
In a July 2010 opinion, Division One of this court affirmed Hartzell's convictions but agreed with Hartzell that the sentencing court erroneously enhanced his sentence for use of a firearm when the jury verdict authorized only enhancement for use of a deadly weapon. Hartzell, 156 Wn.App. at 943. Accordingly, it remanded for resentencing in accord with two recent Supreme Court decisions, State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010) (the sentencing judge is bound by the finding made by the jury in the special verdict form that the defendant was armed with a deadly weapon), and In re Personal Restraint of Brooks, 166 Wn.2d 664, 675, 211 P.3d 1023 (2009) ("when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum").
Because Hartzell's original sentence called for 18 to 36 months of community custody on the second degree assault charge, there existed the possibility that the combination of Hartzell's confinement plus community custody would exceed the 10-year statutory maximum. RCW 9A.20.021(b).
On September 16, 2010, Hartzell appeared before the same judge who presided over his initial trial and sentencing. Hartzell requested a continuance of the hearing to submit briefing to the court about challenges to his offender score. The trial court denied his request for a continuance. Hartzell then argued that his second degree burglary and first degree malicious mischief convictions entered on May 23, 2000, should be counted as one offense for scoring purposes. Hartzell also argued that he should be allowed to submit all relevant evidence regarding criminal history, citing State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009). The trial court denied Hartzell's request and sentenced him to 84 months with a 12-month deadly weapon enhancement on the assault conviction and, concurrently, a 102-month sentence for the unlawful firearm possession conviction, and 18 months of community custody. Hartzell timely appeals.
Because the total period of confinement plus community custody under the new sentence does not exceed the statutory maximum of 120 months, Brooks was not implicated. RCW 9.94A.505(5).
DISCUSSION
Resentencing Hearing
As a preliminary matter, we must first determine whether Hartzell raises an appealable issue in arguing that RCW 9.94A.530(2) entitled him to challenge his offender score for the first time at resentencing or whether the trial court merely made a ministerial correction to Hartzell's original sentence pursuant to Division One's remand instructions.
As this court recently stated in State v. Toney, 149 Wn.App. 787, 792, 205 P.3d 944 (2009), review denied, 168 Wn.2d 1027 (2010), "the defendant may raise sentencing issues on a second appeal if, on the first appeal, the appellate court vacates the original sentence or remands for an entirely new sentencing proceeding, but not when the appellate court remands for the trial court to enter only a ministerial correction of the original sentence." This is because "[t]he decision to simply correct a judgment and sentence is not an appealable act of independent judgment by the trial court." State v. Rowland, 160 Wn.App. 316, 324, 249 P.3d 635, review granted, 172 Wn.2d 1014 (2011). Finally, the "trial court's discretion to resentence on remand is limited by the scope of the appellate court's mandate." State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009).
Here, Division One noted in the body of its opinion that "the court erroneously enhanced [Hartzell's] sentence for use of a firearm when the jury verdict authorized only the shorter enhancement for use of a deadly weapon. A remand is necessary to correct that error." Hartzell, 156 Wn.App. at 947. And in its instructions to the trial court at the conclusion of its opinion, Division One limited the scope of remand, stating that "[t]he judgment and sentence . . . is remanded for resentencing consistent with Williams-Walker and, to the extent still applicable, Brooks." Hartzell, 156 Wn.App. at 949.
Brooks is inapposite to this appeal because Hartzell's corrected sentence does not exceed the 10-year statutory maximum and Williams-Walker stands for the unremarkable proposition that, at sentencing, a trial court must implement the sentencing enhancement decided by a jury. When read in conjunction with the earlier language in the Hartzell opinion cited above, it is clear that Division One intended to limit the scope of the remand to a correction of the error appealed relating to Hartzell's sentencing enhancement. Thus, in following the remand directions, the trial court did not abuse its discretion in failing to conduct "a full, adversarial resentencing proceeding, giving both sides the opportunity to be heard." Toney, 149 Wn.App. at 793. The trial court corrected Hartzell's sentence by substituting the deadly weapon enhancement for the firearm enhancement, and reduced the period of confinement for the assault charge from 84 months with the improper 36-month firearm enhancement to 84 months with a 12-month deadly weapon enhancement, a term well within the 120-month statutory maximum. Thus, Hartzell's untimely challenge to his offender score based on criminal history he acknowledged at his initial sentencing hearing does not derive from an "appealable act of independent judgment by the trial court" and is not properly before us for review. Rowland, 160 Wn.App. at 324. Accordingly, we discern no error in the trial court's correction of Hartzell's judgment and sentence and affirm.
Because we determine that the earlier opinion did not award Hartzell a full resentencing hearing on remand, we do not address Hartzell's argument that the trial court erred in not allowing him to challenge his offender score calculations at resentencing pursuant to RCW 9.94A.530(2).
Statement of Additional Grounds
In his SAG, Hartzell argues that (1) the State failed to prove his criminal history by sufficient evidence because the State did not produce certified copies of his previous judgments and only provided the prosecutor's statement of criminal history, (2) the prosecutor created an impermissible conflict of interest when he filed the certificate of probable cause because he allegedly acted as both an advocate and witness, and (3) the trial court erred in denying him the right of allocution.
First, Hartzell argues that the State failed to prove his criminal history with sufficient evidence at resentencing. Because Division One remanded Hartzell's case for the sole purpose of correcting his sentence-and not for a new resentencing-Hartzell's contention lacks merit. Moreover, at his original sentencing, the State admitted certified copies of Hartzell's prior judgments and sentences. And, after reviewing the certified copies with his standby counsel, Hartzell expressly acknowledged them by stating, "[I]t appears that [they are] correct." RP (March 7, 2008) at 7. Having not challenged his criminal history at the original sentencing, Hartzell cannot now challenge it.
Second, Hartzell argues that the trial court erred in allowing the prosecutor to advocate on behalf of the State. Specifically, Hartzell appears to argue that the prosecutor created an impermissible conflict of interest when he filed the certificate of probable cause because the prosecutor allegedly acted as both an advocate and witness, in violation of RPC 3.7.
RPC 3.7(a) provides:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case;
(3) disqualification of the lawyer would work substantial hardship on the client; or
(4) the lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate.
But the prosecutor's duty is to advocate for the State. See Kalina v. Fletcher, 522 U.S. 118, 130-31, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). The prosecutor does not act as a witness by merely reciting the evidence available to the State. See Kalina, 522 U.S. at 130-31 (a prosecutor properly acts as an advocate when he conveys information to the court in support of the State's certificate of probable cause). Hartzell's claim fails.
Last, Hartzell confuses the right to allocution with the denial of his pro se motion for a continuance of the hearing on remand and argues that the trial court erred in denying him the right of allocution. RCW 9.94A.500(1) provides a basis for the right to allocution stating, "The court shall . . . allow arguments from . . . the offender . . . as to the sentence to be imposed."
Here, the record shows that Hartzell addressed the court at length, arguing that two of his prior convictions should have been counted as one offense for scoring purposes. Because the trial court did not deny Hartzell's right to allocution, this contention lacks merit. The trial court on remand corrected Hartzell's judgment and sentence as directed by the opinion of Division One of this court and we affirm.
We note that Hartzell's allocution differs from his pro se request for a continuance to present additional evidence and briefing.
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.
We concur: HUNT, P.J. VAN DEREN, J.