State of Washington v. Rusty Joe Abrams ( 2018 )

FILED
JANUARY 18, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34954-3-III
Respondent, )
)
v. )
)
RUSTY JOE ABRAMS, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — In an unpublished decision, this court concluded that Rusty
Abrams’ convictions for second degree assault and third degree assault addressed the
same conduct, violating the double jeopardy clause. It stated, “[w]e vacate Rusty
Abrams’ conviction for third degree assault” and “[w]e remand to the trial court for
resentencing based on the vacation of the one conviction.” State v. Abrams,
No. 34954-3-III
State v. Abrams
No. 32982-8-III, slip op. at 16 (Wash. Ct. App. Aug. 16, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/329828_unp.pdf. Mr. Abrams appeals from the
judgment and sentence entered following remand. We affirm but remand for correction
of a scrivener’s error.
PROCEDURE AND ANALYSIS
At the time of resentencing following our remand, the only disputed issue brought
to the attention of the court was whether Mr. Abrams was entitled to a full resentencing
or only a correction of the judgment and sentence. Because the trial court listened to and
considered Mr. Abrams’ arguments for a revised sentence, he has no complaint on that
score on appeal.
Instead, and for the first time on appeal, he complains about the manner in which
the trial court “deleted” the third degree assault count, which is what the prosecutor
explained to the trial court was required by our decision. See Report of Proceedings
(November 22, 2016) at 8. In the amended judgment and sentence, the trial court made
the following entry:
3.2 [X] The court dismisses:
2 Assault in the Third Degree 9A.36.031(1)(g) C 04/27/2014
(Law Enforcement Officer)
Pursuant to the Unpublished Opinion filed August 16, 2016 by the Court
of Appeals of the State of Washington-Division Three, and Mandate filed
September 22, 2016, Court No. 32982-8-III.
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No. 34954-3-III
State v. Abrams
Clerk’s Papers at 7. Mr. Abrams argues that it was error for the court to dismiss, rather
than vacate, his conviction on the third degree assault count. He also argues that while
Section 2.4 of the amended judgment and sentence states that the jury’s special
interrogatory finding an aggravating factor is attached to the amended judgment and
sentence, it is not, in fact, attached.
In arguing that it was error for the trial court to dismiss the third degree assault
count, Mr. Abrams points us to State v. Turner, 169 Wash. 2d 448, 465-66, 238 P.3d 461
(2010). In that case, our Supreme Court directed trial courts presented with the need to
vacate a conviction on a lesser crime that is subject to a double jeopardy bar to no longer
enter “conditional” vacation orders in anticipation of a possible reversal of the conviction
for the greater crime. The vacated crime should not be treated as “‘alive’” for the
purpose of possible reinstatement or as “‘entitled to some weight.’” Id. at 466. Instead,
“the better practice will be for trial courts to refrain from any reference to the possible
reinstatement of a vacated lesser conviction.” Id. (emphasis added).
The trial court’s amended judgment and sentence in this case does not run afoul of
Turner. It does not state or imply that Mr. Abrams’ conviction for the lesser crime
remains alive for any purpose. As the State points out, the manner in which the trial
court completed the amended judgment and sentence provides a more complete record of
what happened to all of the crimes charged by the information and tried to the jury.
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No. 34954-3-III
State v. Abrams
As for the oversight in not attaching the special interrogatory to the judgment and
sentence, we remand so that the court can enter a corrective order.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
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Siddoway, J. {/
WE CONCUR:
Fearing, C.J.
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