State v. Brown, 75458-1-I
| Decision Date | 12 March 2018 |
| Docket Number | No. 75458-1-I,75458-1-I |
| Parties | STATE OF WASHNGTON, Respondent, v. RONALD RICHARD BROWN, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED
COX, J. — Ronald Brown appeals the exceptional sentence imposed upon remand following his successful appeal of his first judgment and sentence. He contends that the sentence is presumptively vindictive. For the first time in this second appeal, he also contends that the State failed in its burden to prove the facts necessary to establish his offender score. Finally, he challenges certain conditions of community custody that the trial court imposed.
We conclude that Brown fails in his burden to show that the new sentence imposed is presumptively vindictive. And he does not argue that it is actually vindictive. He failed to preserve below on remand his challenge to whether the State proved his offender score and he does not establish that the claim falls within the narrow exception of RAP 2.5(a). But he correctly argues that certain conditions of community custody are improper. We affirm in part, reverse in part, and remand with directions.
In 2011, Brown, along with several accomplices, entered the home of two victims, restrained them, threatened them with guns, and robbed them.1 A jury convicted Brown of two counts of first degree kidnapping, two counts of first degree robbery, one count of first degree burglary, and two counts of second degree assault. The jury also found that he was armed with a firearm while committing these crimes, requiring imposition of mandatory firearm enhancements by the court.
The trial court calculated the relevant offender scores and standard ranges at sentencing. Brown's offender score was 17. While the trial court concluded that an exceptional sentence was legally justified, the court chose not to impose one. It did so on the basis that the appropriate length of the aggregate sentence was 638 months.
Brown appealed, and this court reversed the kidnapping counts based on an instructional error.2 This court also vacated the assault counts, concluding that they merged with the robberies.3 It remanded the case for retrial on the reversed counts as well as for resentencing on the remaining convictions.4
At the resentencing hearing, the State sought dismissal without prejudice of the two kidnapping counts. The original sentencing judge granted this motion.
The State recommended that the trial court impose the same 638 month term as originally imposed, this time as an exceptional upward sentence. Brown sought a sentence at the low end of the standard range.
The judge rejected both recommendations and sentenced Brown for the remaining three convictions: two of first degree robbery and one of first degree burglary, each with the mandatory firearm enhancements. The aggregate sentence is for a term of 399 months. The court also imposed certain community custody conditions as part of the resentencing.
Brown appeals.
JUDICIAL VINDICTIVENESS
Presumptive Vindictiveness
Brown argues that the trial court abused its discretion by imposing presumptively vindictive sentences upon remand. We disagree.
Constitutional due process under the Fourteenth Amendment requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives" upon remand.5 The United States Supreme Court established, in North Carolina v. Pearce, a presumption of vindictiveness that may arise in certain circumstances.6 Actual vindictiveness may be grounds for reversal if proven by the defendant.7
The threshold question in each case is whether the sentence on remand is "more severe."8 In State v. Larson, this court adopted the view of federal courts on this question.9 Those courts "uniformly hold that the Pearce presumption never arises when the aggregate period of incarceration remains the same or is reduced on remand."10 Notably, the Ninth Circuit Court of Appeals has held to this approach, explaining that the purpose of the Pearce presumption is protected "[i]f there is a possibility of a sentence reduction and no risk of a sentence increase."11
Here, Brown fails in his burden to show that the Pearce presumption arises. The trial court initially imposed an aggregate sentence of 638 months. Upon resentencing, it imposed an aggregate sentence of 399 months. Under State v. Larson and related federal authorities, the shorter aggregate length of the second sentence precludes application of the presumption.
Notably, a fair reading of the sentencing court's reasoning fails to show otherwise. It appears that the court imposed an exceptional sentence on remand under the "free crime" rule because Brown's offender score was still eleven, above the score of nine, implicating this rule. And the length of the sentence imposed included consideration of the sentence imposed on a Brown accomplice after Brown's original sentencing. In short, nothing in the record before us suggests either presumptive or actual vindictiveness.
Notwithstanding that his current aggregate sentence is substantially lower than his original aggregate sentence, Brown relies on State v. Ameline12 to support his argument. That reliance is misplaced.
In that case, William Ameline was tried and sentenced three times for second degree murder.13 After the first trial, the trial court imposed a 164-month standard range sentence.14 Ameline appealed, securing a reversal and remand. He was convicted again and sentenced to the same term.15 He appealed, secured another reversal and remand, and faced trial again.16 He was convicted a third time, but this time the trial court imposed an exceptional sentence of 240 months.17
Division Two of this court applied the Pearce presumption and set aside the third sentence because it exceeded, in the aggregate, the original sentence.18 Thus, Ameline does not alter the principles we just discussed.
Brown further contends that two opinions from other jurisdictions, State of Oregon v. Bradley19 and In re Matter of Craig,20 support his position. Because there is precedent in this state that supports the result we follow, we have no reason to look to other jurisdictions to decide this question. In any event, his reliance on those cases is misplaced.
Bradley does not support Brown's position. In that case, the Oregon Court of Appeals considered a sentence imposed upon Ronald Bradley following reversal of several convictions for sexual abuse of a child.21 On remand, the trial court imposed a sentence that still took into account the reversed convictions based upon the "strong possibility" that the State might not retry them.22 But the aggregate sentence was shorter than that originally imposed.23
Following the Pearce presumption discussed above, the court of appeals concluded that no presumption of vindictiveness had arisen.24
The court then turned to the related question: whether actual vindictiveness was supported by the record.25 The court concluded that the sentence 26 The trial court's reliance on the reversed convictions presented an unconstitutionally vindictive and "impermissible consideration in increasing the sentence imposed" upon the remaining counts.27
Bradley does not stand for the proposition that the presumption of vindictiveness arises under the circumstances of this case. Rather, it holds that actual vindictiveness may be found where the resentencing court increases the sentence on remaining counts on the basis of reversed counts. There is nothing in this record to show that was done here.
Brown further relies upon the Indiana Court of Appeals decision in Craig. That court also recognized that the presumption of vindictiveness does not arise "where an aggregate sentence is reduced, but some of the interdependent sentences in a 'sentencing package' are increased following a successful appeal of some of the individual counts."28
In the case below, the trial court had found Pierre Craig guilty of three counts of criminal contempt for refusal to testify.29 Those counts were reversed on the basis that they constituted only a single act of contempt.30 But the resentencing court imposed the identical sentence originally imposed for the three counts.31
The court of appeals reversed this sentence, holding "that after reversal of a sentence erroneously entered for multiple acts of criminal contempt, it is a denial of due process to impose a sentence any greater than the original sentence for each single act of contempt."32 It explained that the presumption of vindictiveness arose because the resentencing court imposed a sentence in excess of that attendant to a single count of contempt and more proper to the three-count conviction already reversed.33
The Indiana Court of Appeals subsequently clarified in Sanjari v. State that it "join[s] with that vast majority of courts who have addressed the question and have concluded that it is the aggregate sentence that is the key in such cases."34 The defendant in that case initially had been convicted of two class C felonies, each carrying a five-year sentence, to be served consecutively.35 On appeal, one of the convictions was reduced to a Class D felony.36 The resentencing court then imposed an eight-year sentence on the remaining Class C felony, and two years on the reduced class D felony, resulting in a sentence equivalent to that originally imposed.37 Because the resentencing court could permissibly view the individual sentences as part of an overall plan, and flexibly impose an accordant sentence, its action was not presumptively vindictive.38
In his reply brief, Brown argues that Washington should adopt the "modified aggregate" approach to the Pearce presumption propounded by the Eleventh and Second Circuit Courts of Appeals. Because this...
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