In re Dung Hoang Le, 82396-5-I

CourtCourt of Appeals of Washington
Writing for the CourtDwyer, J.
PartiesIn the Matter of the Personal Restraint Petition of: DUNG HOANG LE, Appellant.
Decision Date13 June 2022
Docket Number82396-5-I

In the Matter of the Personal Restraint Petition of: DUNG HOANG LE, Appellant.

No. 82396-5-I

Court of Appeals of Washington, Division 1

June 13, 2022


UNPUBLISHED OPINION

Dwyer, J.

In 1993, a jury convicted Dung Hoang Le of both murder in the first degree and the inferior degree offense of murder in the second degree. More than 25 years later, in a personal restraint petition (PRP), Le argued that the trial court's entry of judgment on the inferior degree offense conviction violated his right to be free of double jeopardy. We agreed, and remanded the matter to the trial court to vacate the conviction of murder in the second degree and to strike any reference to it from both Le's judgment and sentence and the trial court's findings of fact and conclusions of law. The findings and conclusions had been entered in support of the sentencing court's imposition of an exceptional sentence.

Le now appeals from the trial court's order vacating the conviction of murder in the second degree. According to Le (1) the trial court failed to comply with our directions on remand, (2) a change in the law entitles him to a

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resentencing hearing so that his youth may be considered, and (3) his right to a public trial was violated. Finding no entitlement to relief, we affirm.

I

In 1993, Dung Hoang Le was convicted of the murder of Mayme Lui and the extortion of her family.[1] The jury convicted Le of both first degree felony murder, predicated on the commission of burglary and robbery, and murder in the second degree. Le's standard sentencing range was 261-347 months. The sentencing court imposed an exceptional sentence of 820 months after finding that the victim was particularly vulnerable and that the attack on Lui manifested deliberate cruelty to the victim.

In January 2020, we considered Le's PRP asserting that the inclusion of the alternative conviction violated his right to be free of double jeopardy. See In re Pers. Restraint of Le, No. 78242-8-I, slip op. at 1-3 (Wash.Ct.App. Jan. 21, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/782428.pdf (Le II). The State conceded the double jeopardy violation and we accepted the State's concession. Le II, No. 78242-8-I, slip op. at 3. However, we rejected Le's argument that the double jeopardy violation required resentencing. We explained that

[h]ere, while the trial court noted in both the Judgment and Sentence and [findings of fact and conclusions of law on imposition of an exceptional sentence (FFCL)] that the jury convicted Le of first degree felony murder and second degree intentional murder, the record clearly indicates that the court would have imposed the same sentence had it not included Le's intentional murder
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conviction in the Judgment and Sentence. In the FFCL, the court never discussed the [second degree] intentional murder conviction as a justification for the exceptional sentence Instead, the FFCL provides that the aggravating factors of particular vulnerability of the victim and deliberate cruelty supported the exceptional sentence. See Le I, 1996 WL 312492, at *2 ("The trial court's reasons for the imposition of the exceptional sentence were (1) the particular vulnerability of the victim and (2) deliberate cruelty to the victim."). The majority of the factual findings focus on the facts that demonstrated the particular vulnerability of Lui, and the deliberate cruelty of Le's crime. These factors alone may justify an exceptional sentence. Because vacating Le's alternative conviction does not change these underlying facts, the court would have considered them as aggravating factors when imposing an exceptional sentence even if Le's intentional murder conviction had not been in his Judgment and Sentence.

For these reasons, we...

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