State v. Kilgore , 141 Wash. App. 817 ( 2007 )

Hunt, J.

¶1 Mark P. Kilgore appeals his exceptional 1998 sentences for multiple convictions of child rape and child molestation, which convictions we affirmed in a previous appeal. He argues that (1) when we remanded his case “for further proceedings” following his first appeal, the trial court should have resentenced him and erred in failing to apply Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and (2) the trial court erred on remand when it simply corrected his offender score, ordered his two reversed convictions deleted from his 1998 judgment and sentence, and did not exercise independent judgment to revisit his exceptional sentences for the five affirmed convictions, thus leaving intact his original 1998 exceptional sentences for those five affirmed convictions.

¶2 Citing State v. Barberio, 121 Wn.2d 48, 846 P.2d 519 (1993), the State moves to dismiss Kilgore’s appeal because (1) he failed to challenge his exceptional sentences in his first appeal; (2) there was no resentence on remand from which to appeal; and (3) he has previously appealed and we have previously affirmed his remaining five affirmed convictions, which he cannot now appeal a second time. Holding that Barberio controls, we grant the State’s motion to dismiss Kilgore’s appeal.

FACTS

¶3 In 1998, a jury convicted Kilgore of four counts of first degree child molestation and three counts of first degree child rape involving three different victims. The trial court found that the following five aggravating factors justified exceptional sentences on each of the seven counts: (1) Kilgore violated a position of trust, (2) the victims were particularly vulnerable, (3) the convictions involved multiple victims and multiple incidents per victim, (4) Kilgore’s conduct manifested deliberate cruelty, and (5) Kilgore showed no remorse. Kilgore’s offender score was 18; his standard ranges were 149-198 months for the molestation counts and 210-280 months for the rape counts. On December 1, 1998, the trial court imposed concurrent exceptional sentences of 560 months on each count.

I. First Appeal and Remand

¶4 Kilgore appealed his seven convictions but not his seven corresponding exceptional sentences. Holding that the trial court erred in suppressing evidence that someone else had previously abused one of Kilgore’s victims, we reversed counts I and II (rape and molestation of C.M.) and remanded “for further proceedings”; we affirmed the remaining five convictions. State v. Kilgore, 107 Wn. App. 160, 178, 190, 26 P.3d 308 (2001), aff’d, 147 Wn.2d 288 (2002). The Washington Supreme Court accepted review on a single ER 404(b) issue. The court affirmed our decision. State v. Kilgore, 147 Wn.2d 288, 295, 53 P.3d 974 (2002). On October 7, 2002, the court filed its mandate and remanded the case to the superior court.

¶5 The State did not retry Kilgore on the two reversed counts. Instead, it simply asked the superior court to add appellate costs to the judgment and sentence.¹ On February 7, 2003, the trial court ordered Kilgore to pay appellate costs, the sole focus of the remand hearing.

II. Blakely Decision and Request for Resentencing Hearing

¶6 More than a year later, on June 24, 2004, the United States Supreme Court issued Blakely, holding, “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The Blakely Court further held that the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but rather the maximum a judge may impose without any additional findings. Blakely, 542 U.S. at 303-04.

¶7 The following year, our state Supreme Court held that Blakely does not apply retroactively to cases that were final when Blakely was announced. State v. Evans, 154 Wn.2d 438, 448, 114 P.3d 627, cert. denied, 546 U.S. 983 (2005).

¶8 At the request of Kilgore’s attorney, the trial court scheduled a so-called “resentencing” hearing for October 2005. Kilgore filed a memorandum arguing that he was entitled to receive a standard range sentence under Blakely. The State countered that (1) on remand following Kilgore’s direct appeal of his convictions, neither we nor the state Supreme Court had ordered the trial court to resentence Kilgore; (2) elimination of Kilgore’s two reversed convictions reduced his offender score from 18 to only 12 and, thus, did not change his standard sentencing range; (3) therefore, on remand, the trial court needed only to strike the two reversed counts from Kilgore’s judgment and sentence and to correct his offender score; and (4) Blakely did not apply to Kilgore’s remaining five exceptional sentences because they were final before Blakely was decided.

¶9 Following a hearing on October 7, 2005, which Kilgore did not attend,² the trial court agreed with the State. The trial court ruled that (1) because it was hearing a legal argument, rather than conducting a resentencing, Kilgore could waive his right to be present and (2) “[t]he Defendant’s case was final in October or November of 2002. I am not re-sentencing the Defendant based upon the decisions of the higher court. Rather, I am correcting the Judgment and Sentence, and that’s what we need to accomplish.” Report of Proceeding (Oct. 7, 2005) at 13.

¶10 On October 27, 2005, the trial court issued two orders. The first order, purporting to have been entered nunc pro tunc to November 1, 2002, stated that Kilgore’s case was final when the Supreme Court issued its mandate in October 2002, that Kilgore was entitled to an order correcting his judgment and sentence by striking the two reversed counts and reducing his offender score on the remaining counts, and that he was not entitled to a new sentencing hearing. The second order corrected the 1998 judgment and sentence by striking references to reversed counts I and II and by reducing Kilgore’s offender score from 18 to 12. The trial court left intact its 1998 judgment and exceptional sentences on the five affirmed counts.³

III. Second Appeal, After Remand

¶11 Kilgore appealed the trial court’s ruling that he was not entitled to resentencing on remand. The State moved to dismiss Kilgore’s appeal for failure to raise an appealable issue. Our court commissioner denied the State’s motion to dismiss without prejudice.

¶12 The State reasserts its motion to dismiss, which we now grant.

ANALYSIS

I. No Resentencing for Affirmed Convictions on Remand

¶13 Although we ultimately dismiss Kilgore’s appeal as untimely and improperly before us, we nevertheless first address his contention that the trial court erred in failing to exercise its discretion to resentence him on remand from his first appeal, in which he did not challenge his exceptional sentences. If Kilgore is correct that the trial court should have resentenced him for his affirmed convictions when it considered our remand in 2005, then the remedy would be for us to remand again, this time for resentencing, rather than to dismiss his appeal.

¶14 Kilgore contends that (1) because our previous reversal of two of his convictions resulted in two fewer current offenses and, consequently, a reduced offender score, he was entitled to resentencing for his affirmed counts on remand⁴ and (2) therefore, the trial court erred in failing to resentence him on the five affirmed counts. We disagree.

¶15 In each of the cases Kilgore cites, recalculation of an erroneous offender score on remand changed the defendant’s standard sentencing range.⁵ But such is not the case here: elimination of the two reversed convictions left Kilgore with an offender score of 12, still greater than 9, and, consequently, the same standard sentencing range as before his offender score recalculation.

¶[16 We agree with the State that a reduced standard range, not a reduced offender score,⁶ requires resentencing on remand. See State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996) (in which Division One of our court held that remand for resentencing was unnecessary because his standard range remained the same, even though the defendant’s offender score was reduced from 16 to 13); see also State v. Fleming, 140 Wn. App. 132, 138, 170 P.3d 50 (2007) (“A trial court may determine that nine convictions exist and then stop calculating, so long as the court is not considering the imposition of an exceptional sentence based on reasons related to the offender score.”⁷ (citing State v. Lillard, 122 Wn. App. 422, 433, 93 P.3d 969 (2004))). Kilgore, however, has not demonstrated a reduced standard range warranting resentencing.

¶17 Nevertheless, Kilgore attempts to appeal the trial court’s failure to resentence him on remand, even though (1) his reduced offender score remained greater than 9; (2) he fails to show how a recalculated offender score greater than 9 would have changed his sentence, especially in light of the fact that his standard sentencing ranges for his affirmed convictions remained the same; (3) he does not challenge the length of his exceptional sentences; and (4) he never challenged any of the exceptional sentence aggravating factors or their applicability, either in his first appeal or on remand. Rather, he argues that on remand, he was entitled to have the trial court resentence him to a standard range sentence under Blakely .⁸

¶18 We agree with the dissent that for Blakely to apply, “The only requirement is that his case was not final as of June 24, 2004.” Dissent at page 833. But we respectfully disagree with the dissent’s assertion, based on intermediate federal court case law, that Kilgore’s 1998 judgment and sentence was not final until 2005. Instead, we hold that Kilgore’s 1998 judgment and sentence became final when our Supreme Court issued its mandate from his direct appeal in 2002, well before the United States Supreme Court’s 2004 issuance of Blakely.

¶19 We agree with the dissent that our remand was “open-ended” when we “remanded for further proceedings.” Dissent at 837. Thus, in theory, the trial court could have considered resentencing Kilgore for the affirmed convictions on remand,⁹ and then, arguably, as Kilgore and the dissent assert, Blakely may very well have applied. But that is not what happened here.¹⁰

¶20 On the contrary, our remand did not require the trial court to resentence Kilgore for his affirmed convictions, the trial court did not choose to exercise its discretion to resentence,* ¹¹ and it did not err in so exercising its discretion. Thus, we respectfully disagree with the dissent’s assertion that Kilgore’s sentence was not final until after the 2005 remand. Dissent at 837. We hold instead that the trial court’s discretionary response to our remand resulted in the October 7, 2005 hearing functioning as a correction of the 1998 judgment and sentence for the two reversed convictions but not a resentencing for the five affirmed convictions.

¶21 We conclude, therefore, that the trial court neither abused its discretion nor erred in denying Kilgore’s request to resentence him under Blakely. Accordingly, Kilgore’s attempt to appeal the trial court’s refusal to resentence him on remand fails.

II. Motion To Dismiss Appeal

¶22 We next address the State’s motion to dismiss, which challenges whether Kilgore’s appeal is properly before us. Relying on Barberio, 121 Wn.2d 48, the State argues that our court commissioner should have dismissed Kilgore’s appeal (his second) because (1) he could have challenged his exceptional sentences in his first appeal, but did not, and (2) the trial court did not resentence Kilgore on remand, but rather left his original exceptional sentences intact for the convictions affirmed in the first appeal. We agree with the State that Barberio requires dismissal of Kilgore’s appeal.

¶23 Barberio was convicted of second and third degree rape and given exceptional sentences. Similar to Kilgore, Barberio initially appealed only his convictions, not his exceptional sentences. Division One of our court reversed his third degree rape conviction and affirmed his second degree rape conviction. Barberio, 121 Wn.2d at 49. Similar to Kilgore’s case, on remand, the State elected not to retry Barberio for the reversed third degree rape.

¶24 At resentencing, Barberio challenged the aggravating factors the trial court had found at his original sentencing. He contended that his reduced offender score and standard range, resulting from reversal of one count, entitled him to a reduction in his exceptional sentences on his affirmed count. Barberio, 121 Wn.2d at 49-50. The trial court imposed the same sentences it had originally imposed. And Barberio again appealed.

¶25 The State moved to dismiss Barberio’s second appeal because he had failed to challenge his exceptional sentences in his first appeal. Division One of our court ruled:

We grant the State’s motion [to dismiss] as to those issues which could have been raised in the first appeal, and deny the motion as to those issues which could not have been raised at that time. We affirm the exceptional sentence imposed at the resentencing hearing.

State v. Barberio, 66 Wn. App. 902, 903, 833 P.2d 459 (1992).¹²

¶26 The Supreme Court granted limited review to clarify the rationale supporting Division One’s partial dismissal of Barberio’s appeal. Barberio, 121 Wn.2d at 50. The court noted that on remand, the trial court had discretion to revisit an issue the defendant did not raise in the initial appeal, and if it did, the appellate court could also review the issue. Barberio, 121 Wn.2d at 51 (citing RAP 2.5(c)(1)). Reviewing the trial court’s rulings on remand, however, the court concluded that the trial court had not exercised its discretion to consider on remand issues that Barberio could have, but did not, raise in his first appeal. See Barberio, 121 Wn.2d at 51; Barberio, 66 Wn. App. at 906. Thus, the court held that Barberio could not challenge his exceptional sentences in bis second appeal.

¶27 The procedural posture of Kilgore’s successive appeals is analogous to that in Barberio. Like Barberio, Kilgore did not challenge his exceptional sentences in his first appeal, and the trial court did not exercise its discretion to reconsider Kilgore’s exceptional sentences on remand. Therefore, Kilgore cannot now challenge his original 1998 exceptional sentences in his second appeal, following remand from his first appeal; this remand did not require resentencing but, instead, left intact Kilgore’s original, unchallenged 1998 exceptional sentences on bis five affirmed convictions.

¶28 The dissent maintains that (1) the Barberio court dismissed only old issues that Barberio could have raised in his first appeal, whereas Blakely presented a new issue that Kilgore could not have raised in his first appeal, and (2) Blakely should apply here because “Kilgore’s case did not become final when the mandate was filed [,] our remand was not ministerial in nature, [and] the trial court’s subsequent actions [are] appealable.” Dissent at 837. We respectfully disagree.

¶29 When the trial court chose not to exercise its discretion under Barberio to resentence Kilgore on remand “for further proceedings,” our remand became ministerial in nature: The trial court merely corrected Kilgore’s original judgment and sentence by ordering deletion of his two reversed convictions; the trial court did nothing to alter Kilgore’s 1998 exceptional sentences for his five affirmed convictions. Again, as we have previously noted, there was no resentencing on remand for Kilgore to appeal. Kilgore had already exercised his right to appeal his original judgment and sentence, and he had lost on appeal with respect to his five affirmed convictions, the exceptional sentences for which he had chosen not to challenge.

Applying Barberio, we grant the State’s motion to dismiss Kilgore’s appeal.

1 The record does not show whether Kilgore was present when the trial court considered this request. But the State did not ask the superior court to strike the two reversed counts, and the record shows no alteration of the 1998 judgment and sentence.

2 Kilgore waived Ms right to he present for the trial court’s determination of whether he had a right to resentencing.

3 The dissent disputes that the 2005 orders maintained the 2002-mandated finality of Kilgore’s 1998judgment and sentence for the five affirmed counts. As we explain in our analysis above, we respectfully disagree. Moreover, assuming, without deciding, that the dissent correctly notes the 2005 nunc pro tunc order was invalid, we fail to see how this point affects our majority rationale.

Accordingly, we adhere to our position that the 1998 judgment and sentence, which became final when mandated in 2002, remained intact, valid, and effective for sentencing purposes on the affirmed counts, which sentences were not affected in any way when the trial court chose not to resentence for those affirmed counts during the 2005 remand.

4 Kilgore maintains that the incorrect offender score alone required the trial court to resentence him, citing State v. Jackson, 129 Wn. App. 95, 109 n.14, 117 P.3d 1182 (2005), review denied, 156 Wn.2d 1029 (2006); State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994); and State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).

5 See Roche, 75 Wn. App. at 505 (without questionable prior conviction, score would be 4 instead of 5). In Jackson, the court stated that ordinarily the imposition of an exceptional sentence requires a correct determination of the standard range, and remand is necessary when the offender score has been miscalculated unless the record makes clear that the trial court would impose the same sentence. 129 Wn. App. at 109. After citing the passage from Roche, the Supreme Court added in Parker that, because the sentencing court must correctly calculate the standard range before imposing an exceptional sentence, failure to do so is legal error subject to review. 132 Wn.2d at 189. ‘We are hesitant to affirm an exceptional sentence where the standard range has been incorrectly calculated because of the great likelihood that the judge relied, at least in part, on the incorrect standard ranges in his calculus.” Parker, 132 Wn.2d at 190 (quoted in State v. Ford, 137 Wn.2d 472, 485, 973 P.2d 452 (1999)).

6 Kilgore cites no authority to support his related argument that the trial court was obligated to resentence him on remand because our reduction of his total convictions from seven to five would likely have had an impact. Thus, we do not further consider this argument. See RAP 10.3(a)(5).

Moreover, Kilgore acknowledges that the trial court did not cite the multiple-offense policy as an aggravating factor to support his exceptional sentences. And the trial court specifically said it was basing its exceptional sentences on Kilgore’s lack of remorse, a factor that does not reflect a likelihood that the sentencing court would have changed its sentence on remand based on five, instead of the original seven, counts. In contrast, see State v. Stewart, 125 Wn.2d 893, 897, 890 P.2d 457 (1995) (multiple offense policy can be cited as aggravating factor when defendant has committed several crimes and his high offender score does not result in any greater penalty than if he had committed only one).

7 The trial court based Kilgore’s sentence on the aggravating factors of (1) violation of a position of trust, (2) the vulnerability of his victims, and (3) Kilgore’s lack of remorse.

8 Because Kilgore’s case was tried before Blakely and before the Sentencing Reform Act of 1981, chapter 9.94A RCW, amendments, he further asserts that Blakely would have required the trial court to impose standard range sentences if it had resentenced him on remand in 2005. We agree that Kilgore would have been entitled to standard range sentences if he had been resentenced at the 2005 remand hearing. See State v. Pillatos, 159 Wn.2d 459, 480, 150 P.3d 1130 (2007). But this is not what happened. Kilgore was not resentenced for his five affirmed convictions on remand in 2005 and, therefore, Blakely did not apply.

Moreover, if we were to remand Kilgore for resentencing on his affirmed convictions now, as the dissent suggests, Blakely would apply; but RCW 9.94A.537 (the legislature’s “Pillatos fix”) would also apply. To comply with Blakely, RCW 9.94A.537(2) authorizes the trial court to convene a special jury to make factual findings necessary to support an exceptional sentence, as follows:

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.

But we are not remanding for resentencing on Kilgore’s previously affirmed convictions. Thus, RCW 9.94A.537(2) will not come into play here.

We further note, however, that even if Kilgore were to use this appeal, or a personal restraint petition, to reopen his 1998 exceptional sentences on his previously affirmed convictions, he would have to show either some flaw in the predicate facts underlying his original exceptional sentences or that the previous appellate decisions questioned the validity of his original exceptional sentences for these five affirmed convictions. But Kilgore argues neither, and the previous appellate and Supreme Court decisions evince none. Absent argument and showing that the predicates for Kilgore’s 1998 exceptional sentences (the aggravating factors and their applicability) were erroneous, he cannot now establish that the trial court was required to resentence him on remand in 2005. And because the trial court neither was required to resentence him for his affirmed convictions on remand in 2005 nor undertook to resentence him, Blakely did not come into play. Thus, contrary to the dissent’s assertion, there was no sentencing error on remand in 2005 for us now to correct.

9 See Barberio, 121 Wn.2d at 51 (citing RAP 2.5(c)(1)).

10 The dissent further asserts we erroneously suggest that “a party may take advantage of a new rule of criminal procedure only if the party has raised an argument related to that rule in an earlier proceeding.” Dissent at 832. The dissent misapprehends our explanation. On the contrary, we mean simply that we did not remand expressly for resentencing; rather, we remanded more generally for “further proceedings.” This general remand language allowed the trial court to do what it did here—it removed the reversed convictions from the 1998 judgment and sentence but chose not to exercise its discretion to resentence Kilgore for the affirmed convictions. Thus, there was no resentencing on remand to which Blakely might have applied.

11 We do not further address the State’s contention that when, on remand, it declined to retry Kilgore on the two reversed convictions, the trial court lost jurisdiction to resentence him.

12 Division. One reviewed (D whether the trial court should have reduced Barberio’s exceptional sentence in proportion to his reduced offender score and standard range and (2) whether substantial evidence supported the trial court’s “especially predatory” finding underlying Barberio’s exceptional sentence. Barberio, 66 Wn. App. at 905.