Opinion
No. 37593-1-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Pierce County, No. 04-1-03729-0, Bryan E. Chushcoff, J., entered March 13, 2008.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Houghton, J.
Unpublished Opinion
Johnny McQueen, Jr. appeals his sentence for first degree robbery, arguing that prosecutorial vindictiveness during his resentencing deprived him of due process. We affirm.
FACTS
In 2004, McQueen entered a Fred Meyer store and ordered some deli food. He exited the store without paying. A security guard identified himself and asked McQueen to stop; McQueen hit him in the head. Another guard approached, and McQueen also hit him in the head. Once in custody, McQueen falsely identified himself. After the State charged McQueen with one count of first degree robbery, two counts of second degree assault, and one count of making a false or misleading statement to a public servant, a jury found him guilty on all counts.
At McQueen's sentencing hearing, the parties agreed that his felony offender score was 14, with a corresponding standard range of 129 to 171 months for his first degree robbery conviction. The prosecuting attorney requested the maximum sentence of 171 months for that conviction. He defended his request by stressing McQueen's high offender score, the 8 gross misdemeanor charges not included in that score, the fact that McQueen committed the offenses while he was under drug court supervision, and the prosecutor's opinion that McQueen gave false testimony during trial. Defense counsel argued for 129 months because the prior convictions were nonviolent and McQueen accepted responsibility for them, and because the robbery was less serious than other first degree robberies. The trial court agreed that "as far as Robbery in the First Degree cases go, this is one of the least serious ones," but the court was concerned about McQueen's lack of respect for the law based on his long criminal history. Report of Proceedings (RP) (Nov. 12, 2004) at 14-16. The trial court determined that a mid-range sentence was most appropriate and sentenced McQueen to 150 months on the robbery conviction.
The court also sentenced McQueen to 84 months for each assault, to be served concurrently with the robbery conviction, and to a 90-day suspended sentence for making a false statement.
McQueen appealed, arguing that there was insufficient evidence to support his robbery and assault convictions. After this court affirmed, McQueen filed a personal restraint petition in which he again alleged insufficiency of the evidence but also argued that his convictions on both robbery and assault violated double jeopardy. We refused to reconsider the sufficiency argument but concluded that the assault convictions violated McQueen's double jeopardy rights and ordered the trial court to vacate them and resentence McQueen on the robbery conviction.
At the resentencing hearing, the trial court determined that McQueen's offender score decreased from 14 to 10 as a result of the vacated assault convictions. Even with the decrease, however, the standard range for first degree robbery remained 129 to 171 months. The prosecuting attorney again requested a sentence of 171 months. He argued that the request was justified because of McQueen's high offender score, his 8 gross misdemeanors, and the fact that McQueen assaulted 2 security officers during the robbery. As before, defense counsel requested a sentence at the low end of the range. Nevertheless, the trial court resentenced McQueen to 150 months, the same sentence imposed previously. The court explained:
[T]his was, as robberies [go], a relatively mild . . . or minor robbery. That gets you toward the low end. All of the prior criminal history puts you back in the middle, and that's where we are. I think that's where I'm still at. I'm going to adhere to what I did the last time around. I think it was reasonable and right.
RP (Mar. 14, 2008) at 17. McQueen now appeals, arguing that the State engaged in prosecutorial vindictiveness when it reasserted its original request for a maximum range sentence at his resentencing.
ANALYSIS
A defendant may appeal a standard range sentence if he alleges a constitutional violation. State v. Goldberg, 123 Wn. App. 848, 852, 99 P.3d 924 (2004). McQueen alleges here that prosecutorial vindictiveness deprived him of his right to due process during his resentencing hearing. See State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) ("Constitutional due process principles prohibit prosecutorial vindictiveness."). A prosecutor's act is vindictive only if it is designed to penalize a defendant for invoking his or her constitutional or statutory rights. Korum, 157 Wn.2d at 627. A presumption of vindictiveness arises when a defendant can prove that all of the circumstances support a reasonable likelihood of vindictiveness. Korum, 157 Wn.2d at 627. The burden then shifts to the prosecutor to show that there was an objective justification for the action in question. Korum, 157 Wn.2d at 627-28.
McQueen argues that a presumption of vindictiveness is apparent because after he filed a successful personal restraint petition, the prosecuting attorney requested the maximum sentence of 171 months (greater than his previous sentence of 150 months) at his resentencing. McQueen complains that "[r]ather than advocating that the court should stay with its initial order despite the 4 point difference in the offender score, the prosecutor urged the court to add 21 months — nearly two years — to McQueen's sentence, even though the only new `fact' known about McQueen's situation was that he had succeeded in his collateral attack." Br. of Appellant at 9. He adds that a person is entitled to pursue his right to file a collateral attack "without apprehension that the State will retaliate." Blackledge v. Perry, 417 U.S. 21, 28, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).
The circumstances here do not show that the State acted in a vindictive or retaliatory manner after McQueen filed a successful personal restraint petition. Rather, the State recommended the same sentence it had recommended originally, based on the fact that neither the standard sentencing range nor the supporting factors changed. Perhaps more importantly, the sentence the court imposed also remained the same. Neither the State's conduct nor McQueen's new sentence penalized him for exercising his right to file a collateral attack. See State v. Amos, 147 Wn. App. 217, 234-35, 195 P.3d 564 (2008) (when second sentence was the same as original sentence, defendant failed to demonstrate that it was motivated by vindictive retaliation). Consequently, there is no presumption of vindictiveness to rebut. McQueen's due process rights were not violated during his resentencing hearing as a result of prosecutorial vindictiveness.
Affirmed.
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.
HOUGHTON, J. and PENOYAR, A.C.J., concur.