State of Washington v. Jose Mendez, Jr. ( 2018 )

FILED
SEPTEMBER 11, 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. 34639-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOSE MENDEZ, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Jose Mendez prevailed in a prior personal restraint
petition (PRP), and we remanded for resentencing. He now appeals the trial court’s
amended sentence. We generally affirm.
FACTS
In 2013, a Yakima County jury found Mr. Mendez guilty of multiple crimes: count
1, attempting to elude a pursuing police vehicle; count 2, possession of a controlled
substance—cocaine; count 3, possession of a controlled substance—heroin; count 4, first
degree driving while license revoked (a gross misdemeanor); and count 5, felony driving
under the influence of intoxicating liquor and/or drugs.
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At sentencing, the State presented evidence of Mr. Mendez’s lengthy criminal
conviction history. The history included four 1988 convictions for drug crimes, a 1988
conviction for failure to return from work release, a 1990 federal conviction for
conspiracy to distribute cocaine (for which he was released December 17, 1999), a 2002
conviction for a drug crime, a 2002 conviction for attempt to elude, a 2002 conviction for
second degree malicious mischief, and a 2006 conviction for felony violation of a
protection order.
The State did not produce certified documents of the 1990 federal conviction.
Instead, the State argued that Mr. Mendez had acknowledged the 1990 conviction in the
sentencing hearing for his three 2002 convictions. Mr. Mendez objected and held the
State to its burden of proving the 1990 conviction. The court agreed that the State did not
present adequate proof of the 1990 conviction. The court sentenced Mr. Mendez, but also
included his washed-out 1988 convictions. Mr. Mendez appealed, but did not raise the
issue of his washed-out 1988 convictions. This court affirmed.
Mr. Mendez then filed a PRP and alleged that the trial court imposed an illegal
sentence because his 1988 convictions should have washed out and both his trial counsel
and his appellate counsel were ineffective for failing to raise that issue. The State
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conceded “the offender score erroneously included washed out offenses.” Clerk’s Papers
(CP) at 49. In remanding for resentencing, this court wrote:
The trial court counted nine earlier adult felonies in Jose Mendez’s
offender score. Jose Mendez now contends four [1988] drug convictions
and one [1988] conviction for failure to return from work release should
have washed out. During sentencing and by agreement of the parties, the
trial court did not include in the calculation a 1990 federal conviction of
conspiracy to distribute cocaine because the State had not obtained a
certified record of the judgment. The State now concedes that several class
C felony offenses were washed out due to the State’s failure to provide a
record of the federal conviction. . . .
We agree that the trial court incorrectly calculated the offender
score. Consequently, we vacate the sentence and remand to the superior
court for resentencing. As a result, Jose Mendez’s remaining contention
regarding his trial counsel’s and appellate counsel’s failures to challenge
the offender score are moot. . . .
CP at 57-58.
At resentencing, the State notified the court it had obtained a certified copy of the
federal judgment and sentence for the 1990 federal conviction. This document notes that
Mr. Mendez pleaded guilty to two counts: conspiracy to distribute a controlled substance
under 21 U.S.C. § 846 and distribution of a controlled substance, cocaine (over 500
grams) under 21 U.S.C. § 841(a)(1). The State did not produce any other evidence for
these convictions.
Mr. Mendez argued that the State waived its ability to prove the 1990 federal
conviction when it failed to produce the evidence at the first sentencing hearing and when
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it later conceded the wash-out issue in his PRP. The parties also addressed whether the
resentencing was a full resentencing hearing or was limited to the record and arguments
that were presented at the initial sentencing. Mr. Mendez argued that the sentencing court
could not consider evidence beyond that which was considered at the first hearing and
noted that he had earlier preserved the issue of whether the federal conviction was
comparable to a Washington State felony. The State countered that the hearing was a full
resentencing and that the sentencing court was not limited to the record at the original
sentencing.
The sentencing court noted the language of our opinion, which remanded for
“resentencing,” rather than a limited sentencing hearing without the federal conviction or
washed-out convictions. Report of Proceedings (July 15, 2016) at 9. The court construed
our instructions to it as not precluding a full resentencing. The court thus allowed the
State to introduce the certified 1990 federal judgment and sentence.
Mr. Mendez argued in opposition to an exceptional upward sentence but did not
re-raise the comparability issue. The court accepted the State’s proof, accepted the
State’s argument that the other offenses no longer washed out, and sentenced Mr.
Mendez. Prior to doing so, the court did not perform a comparability analysis of the 1990
conviction with Washington law. The court calculated Mr. Mendez’s offender score to be
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a 16 for count 1 (attempting to elude) and count 5 (felony driving under the influence)
and an 11 for counts 2 and 3 (possession of controlled substances).
The sentencing court also imposed costs of incarceration, a discretionary legal
financial obligation (LFO), and capped that cost at $500. The trial court justified the
discretionary cost because Mr. Mendez had discussed at length his educational
advancement since 2013 and his hope for future employment in the HVAC (heating,
ventilating, and air conditioning) industry. The trial court however did not inquire of Mr.
Mendez’s assets or debts. Mr. Mendez did not object to this.
Mr. Mendez appealed. The sentencing court later entered findings of fact and
conclusions of law in support of its exceptional sentence for free crimes.
ANALYSIS
A. LAW OF THE CASE DOCTRINE
Mr. Mendez first contends the law of the case doctrine prohibits the State from
rescinding its concession in his PRP.
“The law of the case doctrine provides that once there is an appellate court ruling,
its holding must be followed in all of the subsequent stages of the same litigation.” State
v. Schwab, 163 Wash. 2d 664, 672, 185 P.3d 1151 (2008). Mr. Mendez argues that the law
of the case is that the State conceded the 1988 convictions washed out and therefore could
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State v. Mendez
not be used in a resentencing hearing. The State counters that its earlier concession did
not include a concession that it should not be able to provide accurate conviction history
at resentencing. The State also cites RCW 9.94A.530(2), which provides in part: “On
remand for resentencing following appeal or collateral attack, the parties shall have the
opportunity to present and the court to consider all relevant evidence regarding criminal
history, including criminal history not previously presented.” See also State v. Jones, 182
Wash. 2d 1, 10, 338 P.3d 278 (2014) (amended statute is constitutional and permits all
relevant evidence to be considered by sentencing court so as to reflect the offender’s
actual criminal history, whether at sentencing or resentencing).
We agree with the State. In our previous decision, we did not restrict the State
from presenting accurate information to reflect Mr. Mendez’s complete criminal history.
For this reason, the sentencing court did not err when it considered all relevant evidence.
B. COMPARABILITY OF FEDERAL CONVICTIONS WITH WASHINGTON STATE
CRIMES
Mr. Mendez argues that his 1990 federal conviction for conspiracy to distribute a
controlled substance should not have been included in his offender score calculation. He
contends that this conviction is not legally or factually comparable to a Washington State
crime. The State responds that the second 1990 federal conviction—distribution of
controlled substance—cocaine—clearly is comparable. The State requests that this court
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perform the comparability analysis or that we remand to the sentencing court for such an
analysis.
Mr. Mendez has not addressed whether the second 1990 federal conviction is
comparable to a Washington State crime. He may concede this point. If so, the 1988
crimes would not wash out.
We permit Mr. Mendez an opportunity to request a hearing before the sentencing
court. Such a hearing may be requested, but only if he files his request within 60 days of
the issuance of this court’s mandate. If he so chooses, the sentencing court may
determine whether either of the 1990 federal convictions is comparable to a
Washington State crime. If so, the 1988 convictions do not wash out. Consistent with
RCW 9.94A.530(2), the State may introduce additional evidence at the hearing.
C. EXCEPTIONAL SENTENCE FINDINGS
Mr. Mendez assigns error to the sentencing court’s failure to enter findings of fact
and conclusions of law in support of the exceptional sentence it imposed based on free
crimes. The trial court later entered those findings and conclusions. We permitted Mr.
Mendez to file a supplemental brief. He declined. We construe this as a concession.
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D. CLERICAL ERROR IN JUDGMENT AND SENTENCE
Mr. Mendez argues that paragraphs 2.6, 3.2, and 4.A.2 of the judgment and
sentence are internally inconsistent. The State responds that the sentencing court intended
to enter a similar consecutive sentence as the original sentence, and that the “and 4”
phrase in paragraph 4.A.2 should be struck so the paragraphs are internally consistent.
Mr. Mendez did not object to this remedy in his reply brief. We therefore remand to the
sentencing court for it to enter an order redacting “and 4” from paragraph 4.A.2 in the
July 15, 2016 judgment and sentence. Mr. Mendez’s presence is not necessary.
E. COSTS OF INCARCERATION
Mr. Mendez argues that this court should accept review of whether the trial court
erred when it imposed the $500 discretionary LFO. The State argues this court should not
grant review but agrees to strike the discretionary LFO in the event this court does grant
review.
RAP 2.5(a) provides that an “appellate court may refuse to review any claim of
error which was not raised in the trial court.” For this reason, a defendant who does not
object to the imposition of discretionary LFOs at sentencing is not automatically entitled
to review. State v. Blazina, 182 Wash. 2d 827, 832, 344 P.3d 680 (2015). Mr. Mendez did
not object to the sentencing court’s imposition of the $500 discretionary LFO.
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Mr. Mendez asks this court to accept discretionary review, which this court is
entitled to do. See id. at 835. An approach favored by this author is to consider the
administrative burden and expense of bringing a defendant to court for a new hearing
versus the likelihood that the discretionary LFO result will change. State v. Arredondo,
190 Wn. App. 512,538,360 P.3d 920 (2015). "An important consideration of this
analysis is the dollar amount of discretionary LFOs imposed by the sentencing court." Id.
Where the discretionary LFOs total less than $7 50, this author declines to accept review
unless resentencing would require the defendant's presence anyway. Here, the
scrivener's error does not require Mr. Mendez's presence, and the discretionary LFO is
less than $750. We, therefore, decline to accept review of this unpreserved error.
Affirm, except remand to correct scrivener's error, and limited option for hearing
on comparability issue.
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.
I CONCUR:
. 3,.~ ,.::r:
Fearing, J.
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34639-1-111
SIDDOWAY, J. (dissenting in part)- I would not invite Jose Mendez to request a
hearing on the comparability of his 1990 federal conviction for distribution of a
controlled substance for two reasons. The first is that he did not assign error to the failure
to conduct a comparability analysis of that crime.
The second is that if Mr. Mendez accepts the invitation, the most he stands to gain
from such a hearing is to exclude from the calculation of his offender score a crime that
the trial court excluded for a different reason in imposing the original exceptional
sentence. Nothing, scorewise, will have changed. Remand is not necessary when the
record clearly indicates the sentencing court would have imposed the same exceptional
sentence. State v. Parker, 132 Wash. 2d 182, 189, 937 P.2d 575 (1997). To me, the record
is clear.
I otherwise agree with the majority opinion.
7i£loW~ le:-
siddoway, J. :