Opinion
No. 35331-8-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 97-1-04649-3, Stephanie A. Arend, J., entered September 8, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
In 2001, a jury convicted Jacob Melvin Korum of 30 counts of kidnapping, burglary, robbery, assault, and attempted robbery. On appeal, we reversed the kidnapping convictions and all charges that the prosecutor filed after Korum successfully moved to withdraw his guilty plea. The Supreme Court affirmed our dismissal of the kidnapping convictions but reversed our dismissal of the later filed charges. On remand from the Supreme Court, the trial court resentenced Korum by increasing his previous low-end sentences to mid-range sentences for the remaining 19 convictions of robbery, assault, and attempted robbery. On appeal, Korum argues that the trial court (1) exceeded the Supreme Court's mandate at resentencing, (2) was collaterally estopped from increasing his sentences, and (3) vindictively imposed the greater sentences. He also contends that the trial court erred in imposing concurrent 60-month firearm enhancements for the burglary, assault, and robbery convictions because the jury found only that he was armed with a deadly weapon, which allows 24-month enhancements; Korum maintains that the trial court's finding that he was armed with a firearm violates Blakely. We agree with Korum that the trial court erred in imposing firearm enhancements based on jury findings that Korum was armed only with a deadly weapon. Thus, we vacate the 60-month firearm enhancements and remand to the trial court for resentencing with deadly weapons enhancements. Otherwise, we find no error and, therefore, affirm.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
Jacob Melvin Korum and four accomplices committed a series of home invasion robberies during the summer of 1997. After trial, a jury convicted Korum on 30 counts arising from this series of crime, consisting of 29 counts of burglary, robbery, kidnapping, and assault, each while armed with a deadly weapon, and one count of unlawful possession of a firearm.
A detailed description of the facts giving rise to Korum's criminal charges and the procedural history leading to the resentencing hearing at issue here can be found at State v. Korum, 157 Wn.2d 614, 620-22, 141 P.3d 13 (2006).
At sentencing, the trial court ran the kidnapping sentences consecutively and imposed a 608-month consecutive sentence, plus 600 months of firearm enhancements, resulting in a total sentence of 1,208 months. Although the State asked for exceptional or, in the alternative, high-end standard range sentences for the remaining substantive offenses, the trial court sentenced Korum to low-end standard range sentences for the non-kidnapping convictions. The trial court ran the sentences on the remaining substantive offenses concurrent to the kidnapping sentences.
On appeal, we dismissed Korum's kidnapping charges as incidental to the robberies. State v. Korum, 120 Wn. App. 686, 719, 86 P.3d 166 (2004). We also found prosecutorial vindictiveness and dismissed the charges the State added after Korum withdrew his guilty pleas. Korum, 120 Wn. App. at 718-20. The Supreme Court affirmed our dismissal of the kidnapping charges, but it reversed our dismissal of the later-added charges. State v. Korum, 157 Wn.2d 614, 653, 141 P.3d 13 (2006). The Court then remanded for resentencing "consistent with [its] opinion." Korum, 157 Wn.2d at 653.
And, necessarily, the 10 consecutive 60-month firearm enhancements that accompanied the sentences on those charges.
At resentencing, the State requested a sentence at the high end of the 129-to 171-month standard range for Korum's first degree robbery and first degree attempted robbery convictions. Korum argued that since the Supreme Court upheld his sentences on the non-kidnapping convictions, the trial court did not have authority to increase his sentence.
Korum's remaining convictions ran concurrent to one another, and the robbery and attempted robbery convictions carried the longest standard ranges. Thus, Korum's sentence on those charges dictated the length of his actual sentence.
Before resentencing, many supporters of Korum submitted letters to the trial court seeking leniency. And during the resentencing hearing, several supporters spoke on Korum's behalf. Korum also told the trial court that he accepted responsibility for his actions and apologized to the court and the victims for his actions. He described his progress in continuing his education and making positive lifestyle changes during his prison time.
Citing State v. Tili, 148 Wn.2d 350, 60 P.3d 1192 (2003), the trial court ruled that because Korum's resentencing hearing presented a different sentencing context than the original sentencing hearing, it was not bound to resentence Korum to the low-end standard range. It explained that because Korum's kidnapping convictions required a minimum sentence of 608 months during the original sentencing, and because the remaining sentences would run concurrent to that sentence, "it made no difference whatsoever as a practical matter whether on the robbery count Mr. Korum was sentenced to 129 months or 171 months or anywhere in between that." Report of Proceedings (RP) (Sept. 8, 2006) at 55. It reasoned that because the context was different, it could impose a sentence anywhere within the standard range at resentencing.
Korum also argued that as a result of changes in Washington law regarding firearm enhancements, the trial court could no longer impose a firearm enhancement and instead had to impose a deadly weapon enhancement. The trial court rejected Korum's argument, stating that because the jury heard evidence that Korum and his accomplices used only firearms, it could have based the deadly weapon finding only on firearms.
Ultimately, the trial court imposed a 150-month, mid-range sentence for the first degree robbery and first degree attempted robbery convictions, mid-range sentences for his remaining convictions, and a 60-month firearm sentence enhancement.
The 150-month sentence consisted of 19 concurrently running robbery, burglary, and assault sentences, one concurrent unlawful possession of a firearm sentence, and the 60-month firearm sentence enhancement, consisting of 19 concurrently running firearm enhancements.
ANALYSIS I. Trial Court's Authority to Increase Korum's Sentence
A. Scope of Supreme Court's Mandate
Korum argues that the trial court exceeded the Supreme Court's mandate in Korum, 157 Wn.2d 614, when it increased his sentences on his remaining counts. The State argues that the Supreme Court's mandate to resentence Korum "consistent with [its] opinion" merely required the trial court to dismiss the kidnapping charges and resentence Korum based on a corrected offender score. Korum, 157 Wn.2d at 653; Br. of Respondent at 10. RAP 12.2 states that "[u]pon issuance of the mandate of the appellate court . . . the . . . decision made by the appellate court . . . governs all subsequent proceedings in the action in any court."
The court mandated:
[W]e affirm the Court of Appeals dismissal of [the kidnapping counts] . . . and reverse its dismissal of [robbery, assault, and burglary counts added after Korum withdrew his guilty plea] for prosecutorial vindictiveness . . .
Thus, we affirm the Court of Appeals in part, reverse in part, and remand for resentencing consistent with this opinion.
Korum, 157 Wn.2d at 653. Korum argues that his corrected offender score did not alter the standard ranges for the remaining convictions and that nothing in correcting the offender score mandated an increase in the sentences imposed.
Citing State v. Collicott, 118 Wn.2d 649, 663, 827 P.2d 263 (1992) ( Collicott II), Korum argues that a trial court cannot impose a greater sentence when the mandate directs the trial court to conduct "further proceedings in accordance with . . . the opinion." Reply Br. of Appellant at 6. But Collicott II is distinguishable. There, the Supreme Court mandated the trial court to "redetermine the petitioner's offender score." State v. Collicott, 112 Wn.2d 399, 412, 771 P.2d 1137 (1989) ( Collicott I), abrogated by Collicott II, 118 Wn.2d at 650. And because the trial court had already ruled that the facts did not warrant an exceptional sentence, it could not impose an exceptional sentence at resentencing. Collicott II, 118 Wn.2d at 663-64.
Here, the Supreme Court remanded for resentencing "consistent with [its] opinion." Korum, 157 Wn.2d at 653. The mandate did not limit the trial court to a particular aspect of sentencing as Collicott did. Compare Collicott I, 112 Wn.2d at 412. Specifically, the trial court did not consider and reject an exceptional sentence in the first sentencing. And the trial court did not impose an exceptional sentence at the resentencing. Rather, it imposed a standard range sentence with an increase from low-end to mid-range — a decision for which the sentencing court has nearly unfettered discretion. State v. Mail, 121 Wn.2d 707, 711 n. 2, 854 P.2d 1042 (1993); cf. State v. Barberio, 66 Wn. App. 902, 908, 833 P.2d 459 (1992) (court has discretion in determining the length of an exceptional sentence on remand for reduction in offender score absent showing of vindictiveness) (citing State v. Franklin, 56 Wn. App. 915, 920, 786 P.2d 795 (1989)). We are not persuaded that the trial court exceeded the scope of its mandate in resentencing Korum. See State v. Larson, 56 Wn. App. 323, 329, 783 P.2d 1093 (1989) (legal sentence on multiple count charge may be increased to effectuate original sentencing court's scheme).
B. Judicial Vindictiveness
Korum next argues that the trial court vindictively increased his low-end standard range sentences to mid-range standard sentences.
The standard range sentence for Korum's first degree robbery and attempted first degree robbery convictions during both the original sentencing and resentencing on remand was 129 to 171 months. Because Korum's sentences on the remaining charges run concurrently, and the robbery and attempted robbery convictions carry the longest sentences, the sentences imposed on those convictions ultimately determine the period of Korum's incarceration. Here, the difference between Korum's original low-end standard range sentences on those counts and his new mid-range sentences after remand is 21 months.
Due process requires that a defendant's decision to exercise his right to appeal must play no part in the sentence he receives after a new trial. North Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Where the same trial judge presides over more than one sentencing and the defendant's last sentence is more severe than earlier ones, the trial court must expressly state its reasons for imposing a greater sentence. See Pearce, 395 U.S. at 726 (where a trial court imposes a more severe sentence on a defendant after a new trial, the reasons for doing so must affirmatively appear); Smith, 490 U.S. at 802; see also State v. Ameline, 118 Wn. App. 128, 133, 75 P.3d 589 (2003). A trial court's failure to explain its justification for imposing a greater sentence creates a rebuttable presumption of vindictiveness. Smith, 490 U.S. at 802. Where the presumption applies, the State must rebut it by pointing to an "on-the-record, wholly logical, [and] nonvindictive reason for the sentence." Texas v. McCullough, 475 U.S. 134, 140, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); see also United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (State may overcome presumption of vindictiveness only by showing objective information in the record justifying the increased sentence).
The rebuttable presumption of vindictiveness is subject to certain limitations, none of which applies here. See, e.g., Smith, 490 U.S. at 801-02 (presumption inapplicable when first sentencing followed guilty plea and second sentencing followed trial); McCullough, 475 U.S. 134 (presumption inapplicable when jury imposed first sentence but judge granted a new trial after which defendant elected to be sentenced by judge); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (presumption not applied where defendant sentenced by jury at both trials and court does not inform the second jury of the prior sentence); Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (presumption not applied where defendant elects a trial de novo and is aware of the risk of a greater sentence if reconvicted).
In State v. Larson, 56 Wn. App. at 326, 328, the court held that the presumption of vindictiveness did not arise where, on remand for resentencing, a trial court increased a defendant's murder sentence from 281 months to 360 months. A jury had convicted the defendant of first degree murder, second degree rape, and first degree arson. Larson, 56 Wn. App. at 324. Given the defendant's offender score, the murder carried a 281-to 374-month standard range sentence, and the rape and arson each carried 41-to 51-month standard range sentences. Larson, 56 Wn. App. at 324. The court sentenced Larson to consecutive sentences of 281, 41, and 41 months, resulting in a 363-month aggregate sentence. Larson, 56 Wn. App. at 325.
On appeal, the State conceded that the trial court erred in imposing consecutive sentences without entering findings supporting an exceptional sentence. Larson, 56 Wn. App. at 325. The court remanded "'for resentencing permitting the trial court to enter appropriate findings of fact and conclusions of law.'" Larson, 56 Wn. App. at 325 (quoting State v. Larson, 49 Wn. App. 1075, 1987 Wash. App. LEXIS 4687 (1987)).
On remand, the State urged the trial court to enter findings supporting the consecutive sentences and noted that the sum of the consecutive sentences was within the standard range for the murder conviction alone. Larson, 56 Wn. App. at 325. The trial court stated that it "had originally intended to sentence Larson to a total of 30 years, and that the consecutive sentences were merely a means of achieving that end." Larson, 56 Wn. App. at 326. The court then increased the defendant's murder sentence to 360 months and ran the rape and arson sentences concurrent to each other and to the murder sentence. Larson, 56 Wn. App. at 326. The defendant argued that the trial court vindictively increased his murder sentence from 281 months to 360 months and that the presumption of vindictiveness applied to preclude the trial court from imposing a greater sentence on the murder conviction. Larson, 56 Wn. App. at 326.
The court held that the presumption of vindictiveness did not arise because the trial court's original intent in sentencing the defendant to 363 months "fully explained" the increase in the defendant's sentence on remand. Larson, 56 Wn. App. at 328.
Here also, the sentencing court explained that when it originally sentenced Korum, his standard range sentence ran from a 608-month low-end sentence to a 810-month high-end sentence and that, at that point, "it made no difference whatsoever as a practical matter whether" the court sentenced Korum to "129 months or 171 months" for the first degree robbery and the attempted first degree robbery "or anywhere in between." RP (Sept. 8, 2006) at 55.
Nonetheless, a defendant can still prevail on his judicial vindictiveness claim if he can prove actual vindictiveness. Smith, 490 U.S. at 799-800.
Korum attempts to show the trial court's actual vindictiveness essentially by arguing that the trial court's basis for increasing his sentence rested on unfair and inaccurate grounds. To show this, Korum argues that the trial court (1) unfairly compared his sentence with two co-defendants who received longer sentences, ignoring those who received shorter sentences; and (2) disingenuously emphasized two letters from Korum's supporters characterizing his conduct as a "stupid mistake." Br. of Appellant at 13-14. Contrary to Korum's claim, the trial court's conduct does not evince a malevolent intent.
In commenting on Korum's sentence as compared to his co-defendants, the trial court stated that "it's very interesting to note that Mr. Korum previously argued to this [c]ourt that his sentence should be proportionate to the co-defendants'." RP (Sept. 8, 2006) at 60. The trial court disagreed with the propriety of that type of "proportionality" analysis during the original sentencing, given the number of convictions Korum received compared to his co-defendants. RP (Sept. 8, 2006) at 60. On resentencing, the court said that, "even if you want to apply that type of proportionality to somebody else who now stands before the [c]ourt with 20 convictions, . . . you're still not looking at a very significant sentence in light of . . . [the fact] that some of the co-defendants had been sentenced to as much as 22 years" and that the high end of the standard range for Korum's sentence was 19 years, 3 months. RP (Sept. 8, 2006) at 60. Standing alone, the court's observation does not show any animosity toward Korum. Moreover, the trial court did not impose a high-end sentence, which tends to rebut any inference that actual vindictiveness played a role in resentencing.
Finally, despite Korum's argument to the contrary, the trial court did not base its sentence increases on the two letters that referred to Korum's conduct as a "stupid mistake." RP (Sept. 8, 2006) at 59. Rather, read in context, the trial court mentioned the characterizations merely to highlight the seriousness of Korum's offenses and their impact on the victims.
Korum fails to establish that actual vindictiveness motivated the court to impose a mid-range sentence for his first degree robbery and attempted robbery sentences.
C. Collateral Estoppel
Korum also argues that the trial court was collaterally estopped from imposing increased sentences for the robbery and attempted robbery convictions.
In criminal cases, collateral estoppel prevents a court from reconsidering an issue if (1) a court in a prior adjudication has already decided the same issue, (2) the first court rendered a final judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party or in privity with the party to the prior adjudication, and (4) applying the doctrine will not work an injustice against the party to be estopped. State v. Harrison, 148 Wn.2d 550, 561, 61 P.3d 1104 (2003) (citing Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d 312 (1998)). Collateral estoppel is intended to prevent a party from relitigating an issue of ultimate fact that has already been decided by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 442-43, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (Fifth Amendment guarantee against double jeopardy embodies the doctrine of collateral estoppel).
Korum points out that, at the first sentencing, the State recommended high-end sentences on the same basis that it asked for high-end sentences originally. He argues that, at the first sentencing, the trial court rejected the State's arguments, which included that an appeal might change the circumstances of the sentences, and declined to impose anything beyond a low-end sentence. Accordingly, he argues here that because the trial court already determined to impose a low-end sentence, based on the same record and argument, the trial court was estopped from increasing his sentence.
Both Korum and the State focus on Tili, 148 Wn.2d 350. In that case, the issue was whether a court that had declined to impose an exceptional sentence at the original sentencing could, on remand, impose an exceptional sentence without violating collateral estoppel. Tili, 148 Wn.2d at 360-61. The trial court had originally sentenced the defendant to a total of 417 months by imposing three rape sentences consecutively. Tili, 148 Wn.2d at 357. In doing so, the trial court explained that if the appellate court were to hold that the crimes constituted the same criminal conduct, it would impose the same sentence as an exceptional sentence based on deliberate cruelty and victim vulnerability. Tili, 148 Wn.2d at 357.
The defendant also received sentences for first degree burglary and second degree assault convictions. Tili, 148 Wn.2d at 357.
On appeal, the defendant argued that the trial court erred in imposing consecutive terms for his three rape convictions because the rapes constituted the same criminal conduct for sentencing purposes. See Tili, 148 Wn.2d at 357. The Supreme Court agreed and remanded for resentencing. State v. Tili, 139 Wn.2d 107, 128, 985 P.2d 365 (1999). The resulting high-end standard range sentence for first degree rape was significantly shorter than the original sentence. Tili, 148 Wn.2d at 367. At resentencing, the trial court imposed concurrent sentences but maintained the defendant's 417-month sentence by imposing an exceptional sentence. Tili, 148 Wn.2d at 357.
The Supreme Court affirmed, reasoning that the sentencing context had changed because the trial court faced fundamentally different issues at the two sentencing hearings: the presumptive sentence resulting from separate and distinct conduct versus the presumptive sentence resulting from same criminal conduct. Tili, 148 Wn.2d at 362. The Court concluded that collateral estoppel did not apply because the changed context at resentencing prevented a finding that the issues were identical. Tili, 148 Wn.2d at 361-62; see also Harrison, 148 Wn.2d at 561 (collateral estoppel requires identical issues in prior and subsequent proceedings).
We have the same changed contexts here. At the first sentencing, the trial court explained that it "made no difference" where the court sentenced Korum on the robbery and assault convictions because the much greater sentences on the kidnapping controlled Korum's actual time of incarceration. At the resentencing, the kidnapping convictions had been dismissed and the robbery and assault convictions controlled Korum's actual incarceration time. Moreover, the trial court at the first sentencing did not litigate any ultimate issue of fact in setting Korum's sentences within the sentencing ranges. Thus, it did not, as the court did in Tili, rule that Korum's conduct amounted to the same criminal conduct or was so egregious as to justify an exceptional sentence. Rather, the court's sentence within the standard range was wholly discretionary and not subject to appeal. RCW 9.94A.585(1); Mail, 121 Wn.2d at 710-11. Nor did the State's argument that the court should impose higher-end sentences because of possible appellate outcomes require the court to find any ultimate facts. It was simply a policy argument, offering a policy reason for the court to sentence Korum at the high end of the standard range.
In support of his collateral estoppel argument, Korum relies again on Collicott II, 118 Wn.2d 649. But because a majority of the Collicott II justices disavowed the collateral estoppel discussion as unnecessary to the decision, that discussion is dicta. Harrison, 148 Wn.2d at 560.
We conclude that collateral estoppel did not bar the trial court from resentencing Korum within the standard range on remand.
II. Sentence Enhancement
A. The Trial Court's Authority to Impose a Firearm Enhancement
Korum argues that the trial court exceeded its authority by imposing a firearm enhancement. He argues that because his case is still on direct appeal, he is entitled to the Blakely rule that the sentencing court can impose no sentence beyond that authorized by the jury verdict, citing State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), rev'd on other grounds by Washington v. Recuenco, 548 U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). The State counters that the error was harmless, a finding the United States Supreme Court has now authorized for Blakely violations. Recuenco, 126 S. Ct. at 2553.
The jury convicted Korum in April 2001, and the trial court sentenced him in September 2001, before Blakely. The jury had found that Korum or an accomplice was armed with a deadly weapon during the crimes. The trial court then found that the deadly weapons were actually firearms and imposed 60-month firearm enhancements. The United States Supreme Court decided Blakely in June 2004, holding that a sentencing court could impose no greater sentence than that allowed by the facts reflected in the jury verdict. Blakely, 542 U.S. at 303-04. Blakely applies to Korum's sentencings because it applies to all cases still pending on appeal when Blakely was filed. See State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627 (2005). Under Blakely, a sentencing court may not make a firearm finding on the basis of a jury's deadly weapon finding. Recuenco, 154 Wn.2d at 162. Thus, Korum can challenge his April 2001 sentencing under Blakely. But even if he could not, the trial court resentenced Korum in September 2006, after Blakely, and again found that Korum or an accomplice had used a firearm. This was plainly wrong; the jury had found only deadly weapons use. We agree with Korum that in September 2006, his case was clearly controlled by Blakely and Recuenco, and the trial court could impose only deadly weapons enhancements, not firearms enhancements.
Moreover, the State's proposed harmless error analysis does not apply. In urging us to find harmless error, the State identifies the error as the jury instruction and its wording. But Korum does not argue that the error lies in the instruction's wording and, furthermore, the instruction was not erroneous. The instruction was statutorily authorized, and the jury followed it, finding as it was asked to do, that Korum or an accomplice was armed with a deadly weapon. The error occurred when the trial court in September 2006 found that the deadly weapons were actually firearms. The United States Supreme Court pointed out the same flawed analysis in a slightly different context in Recuenco. There, the State argued that Recuenco had invited the error (imposing firearm enhancement based on jury finding of deadly weapon) by proposing the deadly weapons instruction. Recuenco, 154 Wn.2d at 163. The Court rejected the argument, explaining that the error was not with the instruction but with the trial court's finding of firearm. Recuenco, 154 Wn.2d at 163-64. And so it is here. We vacate the firearm enhancements and remand for the trial court to impose deadly weapons enhancements only.
III. Statement of Additional Grounds for Review
Korum, relying on a decision of the Washington Supreme Court in State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005), argues that five of his convictions for second degree assault and attempted assault should merge with five of his convictions for first degree robbery and attempted robbery, respectively. Korum's argument fails because (1) it is not properly before the court, and (2) his case is readily distinguishable from Freeman.
1. Korum's Argument is Not Properly Before the Court
Korum did not raise the merger issue until he filed his reply sentencing memorandum. Generally, we will not consider an issue that an Appellant does not raise until his reply brief. See, e.g., Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) ("An issue raised and argued for the first time in a reply brief is too late to warrant consideration.").
Also, we will not consider an issue that a party has expressly waived. State v. Valladares, 99 Wn.2d 663, 672, 664 P.2d 508 (1983). At Korum's resentencing hearing, Korum's counsel stated that:
[DEFENSE COUNSEL]: I think I can clarify that. I'm not raising an issue that the counts should be merged in this case. I just cited that as authority that things are going opposite — in the opposite direction of what the State is asking. I'm not asking that you consider the assaults to run concurrently with the robbery, so there's no real Freeman issue. Is that clear?
THE COURT: Well, I think you might have just misstated. I think you are asking that the counts run concurrent. You're not asking that they be merged.
[DEFENSE COUNSEL]: Right. The Freeman case holds that assaults and robberies can merge, and we're not asking you to do that.
RP (Sept. 8, 2006) at 6-7. Korum expressly waived the issue.
2. Korum's Case is Readily Distinguishable From Freeman
Korum argues that Freeman requires second degree assault charges to be merged with first degree robbery charges if both sets of charges arise out of the same incident, unless each has an independent purpose or effect. But the "dispositive question" before the Freeman court was whether "the legislature intended to punish separately both a robbery elevated to first degree by an assault, and the assault itself." Freeman, 153 Wn.2d at 771. The Freeman decision turned on the fact that "without the conduct amounting to assault, each [defendant] would be guilty of only second degree robbery." Freeman, 153 Wn.2d at 778.
By contrast, Korum's robbery convictions were not elevated to the first degree by his assaults. Korum was charged under former RCW 9A.56.200(a) and (b) (1975), which required that, while in commission of the robbery or flight therefrom, he was armed with a deadly weapon or displayed what appeared to be a deadly weapon. He was not charged under former RCW 9A.56.200(c) (1975), which elevates robbery to the first degree if the defendant inflicts bodily injury. Thus, Korum's case is distinguishable from Freeman because inflicting bodily injury, which was the basis for his second degree assault conviction, was not a factor in elevating his robbery convictions to the first degree.
We affirm Korum's sentences except for the firearm enhancements, which we vacate. We remand for the trial court to impose deadly weapons enhancements.
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.
VAN DEREN, A., C.J., PENOYAR, J., concur.