State of Washington v. Rocky Rhodes Kimble ( 2020 )

FILED
MARCH 17, 2020
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. 36514-0-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ROCKY RHODES KIMBLE, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Since 2012, Rocky Kimble has filed multiple motions
seeking vacation or resentencing of his 2000 pleas of guilty. Either form of relief would
result in his 30-year exceptional sentence, imposed without a jury’s finding, to be
nullified. In 2015, we made a final decision on the merits of the same issue he now
raises. He argues collateral estoppel does not apply because we should have dismissed
his personal restraint petition (PRP) on procedural grounds instead of deciding it on the
merits. We disagree, apply collateral estoppel, and dismiss his latest PRP.
FACTS
In 1999, the State charged Rocky Kimble with one count of rape in the first degree
and one count of burglary in the first degree. In 2000, Mr. Kimble pleaded guilty to the
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State v. Kimble
amended charges of one count of rape in the first degree and one count of residential
burglary.
In the signed plea agreement, Mr. Kimble’s offender score was listed as “3” on
both counts, based in part on a prior robbery conviction in Wisconsin. The State agreed
to recommend a sentence of 160 months’ imprisonment for the rape charge and a
concurrent sentence of 17 months’ imprisonment for the burglary charge. But judges are
not bound by a sentencing recommendation. The sentencing court disagreed with the
State’s recommendation and entered an exceptional sentence of 360 months for the rape
charge. Mr. Kimble appealed the exceptional sentence to this court. Our decision was
final before Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403(2004), and we affirmed.
In April 2012, Mr. Kimble filed a motion to withdraw pleas of guilty in the
superior court, arguing his offender score was miscalculated. Mr. Kimble based this
argument on the contention his prior conviction for robbery in Wisconsin was not
comparable to a Washington crime. The trial court found Mr. Kimble’s offender score
had been calculated correctly and concluded the motion was not timely filed and,
additionally, Mr. Kimble had not made a showing he was entitled to relief. It then
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transferred Mr. Kimble’s motion to this court as a personal restraint petition. See
CrR 7.8(c)(2). Mr. Kimble later abandoned his PRP, and we dismissed it.
In April 2015, Mr. Kimble filed a PRP with this court. He argued the PRP
overcame the time bar because the judgment was facially invalid due to miscalculated
offender scores of “3” for each crime. He claimed (1) he was entitled to withdraw his
guilty plea as involuntary because the offender score errors resulted in his being
misinformed as to the direct consequences of his plea, and (2) the miscalculated offender
score was prejudicial error that required resentencing.
With respect to Mr. Kimble’s first argument, we concluded that his claim of plea
involuntariness did not fall within any RCW 10.73.100 exception to the one-year time
bar. See In re Pers. Restraint of Snively, 180 Wn.2d 28, 32, 320 P.3d 1107 (2014)
(petitioner’s sole remedy in challenging facially invalid sentence is correction of
sentence; claim of plea involuntariness due to misinformation about sentence is not an
exempt ground for relief under RCW 10.73.100).
With respect to Mr. Kimble’s second argument, we concluded his offender score
was correctly calculated for his rape conviction. In reaching this conclusion, we
determined the original sentencing court had inadvertently checked the “same criminal
conduct” box on the sentencing form.
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We did agree with Mr. Kimble that his offender score was incorrectly calculated
for his burglary conviction. But because the lesser burglary sentence was concurrent with
the rape sentence, we concluded Mr. Kimble was not harmed by the offender score error,
and the defect did not result in a complete miscarriage of justice. For that reason, he was
not entitled to relief. In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 508, 301 P.3d
450 (2013). We dismissed Mr. Kimble’s PRP because he was not entitled to relief under
either of his two arguments.
Mr. Kimble petitioned the Washington Supreme Court for discretionary review of
the second part of our order, where we denied his resentencing request because of a
purported error in his offender score. A commissioner denied his request for
discretionary review by a written ruling. In ruling, the commissioner wrote:
Mr. Kimble is correct that the trial court apparently checked off the
“same criminal conduct” box on the judgment and sentence. But the
standard sentencing range specified in the plea agreement, the plea
colloquy, and the judgment and sentence plainly reflected that the trial court
counted the current offenses separately. The checked-off box was clearly a
scrivener’s error.
Clerk’s Papers (CP) at 345 (emphasis added).
In November 2017, Mr. Kimble filed a second motion to withdraw pleas of guilty.
In his 2017 motion, Mr. Kimble again argued he should be permitted to withdraw his
guilty plea as involuntary because he was misinformed due to the miscalculated
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residential burglary offender score. The trial court transferred the CrR 7.8 motion to this
court to be considered as a PRP, and Mr. Kimble appealed the transfer.
Despite prior rulings by this court and the Supreme Court commissioner, the State
responded in its brief: “[T]he sentencing court determined that both current offenses
constituted the ‘same criminal conduct,’ . . . [so] Kimble’s offender score should . . . [be]
reduced by one (1) point on both charges, and his standard sentencing ranges
recalculated.” CP at 293.
After the State filed its response brief, Mr. Kimble asked the court to withdraw his
PRP, and this court filed a certificate of finality on November 27, 2018.
In May 2018, Mr. Kimble filed a motion to vacate his pleas of guilty. This motion
was based on the “concession that Mr. Kimble’s offender score and presumptive standard
range sentences were, in fact, miscalculated . . . .” CP at 271. The trial court appointed
Mr. Kimble an attorney. The State filed a response, again incorrectly stating Mr.
Kimble’s scores were miscalculated, but contending he was not prejudiced by the
miscalculation. At a hearing on the motion, Mr. Kimble’s appointed attorney requested a
continuance, stating he had to review the transcript of the guilty pleas because he did not
“really believe Judge Baker even found anything to be the same course of criminal
conduct.” Report of Proceedings at 72.
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Following this, Mr. Kimble moved to discharge his appointed counsel, arguing
there was a conflict of interest and a breakdown in communication. He claimed the
conflict arose from the counsel’s admission at the hearing. The State then filed a motion
to strike Mr. Kimble’s motion to vacate, arguing it was barred by collateral estoppel.
The trial court held a hearing on December 10, 2018, to address all of the issues.
At the hearing, Mr. Kimble’s attorney was given a chance to address the motion to
discharge and he explained his statements were based on his duty of candor to the court.
The trial court did not rule on the motion to discharge counsel and, instead, ruled
collateral estoppel applied in this case and denied the motion to vacate. Mr. Kimble
objected, stating he could prove the offender scores were incorrect, but the trial court
ruled this court and the Supreme Court had already ruled on that issue. Mr. Kimble did
not object to the trial court’s failing to rule on his motion to discharge counsel.
Mr. Kimble timely filed this appeal.
ANALYSIS
Mr. Kimble makes three arguments on appeal: (1) the trial court erred by failing to
inquire into the asserted conflict of interest, (2) the State is judicially estopped from
challenging its concession that his offender scores were incorrectly calculated, and (3) the
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trial court erred by applying collateral estoppel. The third issue, if decided against Mr.
Kimble, would be dispositive. We, therefore, begin our analysis with that issue.
COLLATERAL ESTOPPEL
Mr. Kimble contends the trial court erred in determining he was collaterally
estopped from rearguing that his offender score was miscalculated. We disagree.
Whether a court is collaterally estopped from deciding an issue is a question of law
this court reviews de novo. State v. Vasquez, 109 Wn. App. 310, 314, 34 P.3d 1255(2001), aff’d, 148 Wn.2d 303, 59 P.3d 648 (2002). To satisfy the well-settled test for
collateral estoppel, a party must show
“(1) the issue decided in the prior adjudication is identical with the one
presented in the second action; (2) the prior adjudication must have ended
in a final judgment on the merits; (3) the party against whom the plea is
asserted was a party or in privity with the party to the prior adjudication;
and (4) application of the doctrine does not work an injustice.”
Id. (internal quotation marks omitted) (quoting Thompson v. Dep’t of Licensing,
138 Wn.2d 783, 790, 982 P.2d 601 (1999)).
Mr. Kimble challenges the first and second factors. Under those factors, the
court considers whether the issue was actually litigated and necessarily and finally
determined in the prior proceeding. Christensen v. Grant County Hosp. Dist. No.
1, 152 Wn.2d 299, 307, 96 P.3d 957 (2004). In evaluating whether there is a final
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judgment on the merits, courts must consider whether the claim was properly
resolved on the merits as opposed to procedural grounds. Ullery v. Fulleton, 162
Wn. App. 596, 604-07, 256 P.3d 406 (2011).
Mr. Kimble contends our prior determination, that his offender score of “3”
for rape, was not a final decision on the merits because his entire 2015 PRP
“should have been” dismissed on procedural grounds. Appellant’s Br. at 20. In
support of his argument that his entire 2015 PRP should have been procedurally
dismissed, he cites In re Personal Restraint of Hankerson, 149 Wn.2d 695, 702, 72
P.3d 703 (2003). We agree, his entire 2015 PRP should have been procedurally
dismissed once we determined that his first argument was time barred.
But simply because we should have dismissed Mr. Kimble’s entire 2015
PRP on procedural grounds, does not mean collateral estoppel applies. This point
is understood by examining Ullery.
In Ullery, the trial court dismissed an earlier action between the parties,
having determined Mr. Fulleton lacked standing and additionally determining that
he had failed to perform a reclamation agreement. 162 Wn. App. at 600.
Thereafter, the Ullerys filed an ejectment proceeding against the Fulletons. Id.The Fulletons defended and counterclaimed on the basis that the reclamation
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agreement had been performed. Id. The trial court, applying collateral estoppel to
the issue of performance, ruled in favor of the Ullerys. Id. at 602.
In reversing, we explained the Fulletons’ defense and counterclaim were
not barred by collateral estoppel because the earlier claim brought by Mr. Fulleton
did not result in a judgment on the merits. See generally, id. at 603-07. Citing
various authorities, we held that when a trial court dismisses a case on procedural
grounds such as lack of standing, any additional substantive basis for dismissal
does not have preclusive effect. Id. at 605-06. In buttressing this holding, we
agreed with the comment e of the Restatement (Second) of Judgments § 20 (1982).
The comment author explained: A gratuitous analysis of a substantive issue might
not be as carefully and rigorously analyzed and, of critical importance, the losing
party—having failed on a procedural ground—would not have an incentive to
appeal the substantive issue. Ullery, 162 Wn. App. at 606.
That is not the case here. We did not dismiss Mr. Kimble’s 2015 PRP on
procedural grounds and then gratuitously analyze the merits. Rather, we dismissed
his first argument on procedural timeliness grounds and then addressed the merits
of his second and independent argument. Because we did not dismiss his entire
2015 PRP on procedural grounds, we carefully analyzed his second argument.
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Had we dismissed Mr. Kimble’s entire 2015 PRP on procedural grounds, he
would not have had an incentive to petition the Supreme Court for review. But we
did not, and Mr. Kimble did petition the Supreme Court to review the merits of his
offender score argument. The Supreme Court commissioner then analyzed the
merits of his offender score argument and agreed with us, the checked box “was
clearly a scrivener’s error.”1 CP at 345.
We conclude there was a final judgment on the merits with respect to Mr.
Kimble’s offender scores. For this reason, collateral estoppel bars relitigation of
his current PRP claim, and we dismiss it.
1
Mr. Kimble argues we erred in 2015 by determining the sentencing judge
inadvertently checked the “same criminal conduct” box. He argues we should order a
reference hearing so the judge who conducted the plea and sentence 15 years ago could
enter findings on that issue. We disagree for two reasons. First, the Supreme Court
Commissioner reviewed the recorded colloquy and found no evidence the trial court
intended to check the “same criminal conduct” box. Second, we find it inconceivable that
the same judge who handed down an exceptional sentence more than twice the maximum
standard range would also use its discretion to grant Mr. Kimble a lesser offender score
by purposefully checking the “same criminal conduct” box.
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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.
(.~.
Lawrence-Berrey, C.J. (
WE CONCUR:
Q-9
Pennell, J.
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