State v. Brown
| Decision Date | 02 May 2019 |
| Docket Number | No. 95734-7,95734-7 |
| Parties | STATE of Washington, Respondent, v. Ronald Richard BROWN, Petitioner. |
| Court | Washington Supreme Court |
Mick Woynarowski, Gordon & Saunders, 1000 2nd Avenue, Suite 3140, Seattle, WA 98104, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Petitioner.
Seth Aaron Fine, Snohomish County Prosecutors Office, 3000 Rockefeller Avenue, Everett, WA 98201-4060, for Respondent.
¶1 Ronald Brown appeals an unpublished Court of Appeals decision affirming his exceptional sentence for two counts of first degree robbery and one count of first degree burglary. At his first sentencing hearing, the trial court decided not to impose an exceptional sentence on his original convictions. On appeal, four of his seven original convictions were vacated. Upon resentencing, the trial court exercised its discretion and imposed an exceptional sentence above the sentencing range for his remaining convictions. Brown argues that the decision to impose an exceptional sentence on remand was collaterally estopped, that the exceptional sentence is the result of judicial vindictiveness, and that the State’s recommendation for an exceptional sentence is the result of prosecutorial vindictiveness.
We affirm the Court of Appeals decision and affirm Brown’s sentence.
¶2 In 2012, Brown was charged with 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, all with a firearm. Brown proceeded to jury trial. At the close of trial, the jury convicted Brown of all seven counts.
¶3 At the sentencing hearing, the State recommended the high end of the sentencing range for Brown’s convictions.
The State noted that an exceptional sentence upward would be warranted based on Brown’s high offender score but did not recommend an exceptional sentence at the original sentencing. The trial court also declined to impose an exceptional sentence, citing the victims’ statements that their lives would have been in danger if not for Brown being present. The trial court ultimately sentenced Brown to the high end of the sentencing range, 638 months in prison.
¶4 On appeal, the Court of Appeals reversed Brown’s two kidnapping convictions on instructional error and his two assault convictions on double jeopardy grounds. The court then remanded for resentencing.
¶5 On remand, the State elected to dismiss the two kidnapping charges without prejudice because of the time and effort involved in relocating the victims and codefendants, and the resources spent by the prosecution in retrying Brown. At the resentencing hearing, the State initially recommended a sentence of 351 months—reflecting the high end of the standard sentencing range. However, the State later amended its recommendation to reimpose the original sentence as an exceptional sentence. The court declined to reimpose the original sentence but did impose an exceptional sentence of 399 months. At the resentencing hearing, the judge noted that he did not impose the exceptional sentence at the original sentencing because he felt the 638 months was "legally appropriate and within the law." Verbatim Report of Proceedings, Resentencing & Mot. Hr’g (VRP Mot.) (June 21, 2016) at 34. The judge also noted that imposing the high end of the sentencing range with the remaining charges would give Brown a "free crime[ ]," justifying the imposition of an exceptional sentence. Id. However, the judge stopped short of imposing the original sentencing range.1 Id.
¶6 Brown first argues the trial court is collaterally estopped from imposing an exceptional sentence at the resentencing hearing when it chose not to impose one at the original sentencing hearing.
¶7 For collateral estoppel to apply, (1) the issue in the prior adjudication must be identical to the issue currently presented for review, (2) the prior adjudication must be a final judgment on the merits, (3) the party against whom the doctrine is asserted must have been a party to or in privity with a party to the prior adjudication, and (4) barring the relitigation of the issue will not work an injustice on the opposing party. State v. Harrison, 148 Wash.2d 550, 561, 61 P.3d 1104 (2003). Courts should not apply collateral estoppel hypertechnically but, rather, with realism and rationality. State v. Tili, 148 Wash.2d 350, 361, 60 P.3d 1192 (2003).
¶8 Brown argues the issue in the prior adjudication is identical to the issue currently presented for review—whether to impose an exceptional sentence based on Brown’s offender score. Suppl. Br. of Pet’r 6-7. Specifically, Brown argues because the judge chose not to impose an exceptional sentence at the initial sentencing despite being justified due to his offender score, collateral estoppel applies. Id. at 7.
¶9 His argument is similar to the one made in Tili. In that case, the defendant was initially sentenced to 417 months. 148 Wash.2d at 357, 60 P.3d 1192. The trial court did not impose an exceptional sentence because it treated his offenses as separate and distinct conduct. Id. However, the court indicated that if his ruling was reversed on appeal and the offenses should have been treated as the same criminal conduct, the court would impose the same sentence as an exceptional sentence. Id. The original sentence was reversed, to be treated as same criminal conduct, and the trial court imposed the same 417 month sentence as an exceptional sentence. Id.
¶10 The defendant in Tili argued that the trial court was collaterally estopped from imposing an exceptional sentence on resentencing because it chose not to do so at the original sentencing hearing. Id. at 361, 60 P.3d 1192. This court was not persuaded. We noted that separate and distinct conduct for multiple offenses resulted in a fundamentally different sentence from same criminal conduct—the former resulting in consecutive sentences, while the latter results in concurrent sentences. Id. at 362-63, 60 P.3d 1192. Thus, the issue at resentencing was fundamentally different.
¶11 Despite this, Brown attempts to distinguish Tili because, here, the only relevant change was the dismissal of four charges resulting in a lowered offender score. Suppl. Br. of Pet’r at 7. This is a distinction without effect. Under RCW 9.94A.535(2), a trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under certain circumstances, one of them being that "[t]he defendant has committed multiple current offenses and the defendant’s high offender score results in some of the current offenses going unpunished." RCW 9.94A.535(2)(c). To justify an exceptional sentence upward, a trial court must first calculate or otherwise determine the defendant’s offender score, and based on that factor, the trial court has discretion to impose an exceptional sentence if it deems the defendant’s sentence will result in "free crimes."
¶12 Based on Brown’s offender score in addition to the firearm enhancements, Brown’s original sentence totaled 638 months. The trial court had a question before it at that time: Based on the defendant’s high offender score, should it impose an exceptional sentence based on the current range? The court decided the sentence at the time was fair and opted not to impose an exceptional sentence. On appeal, based on the reversal of two convictions on the basis of double jeopardy and the State’s decision not to retry two other convictions, Brown was left with three convictions. The question upon resentencing thus fundamentally changed: Was the newly computed sentencing range sufficient based on Brown’s offender score? The trial court had a new offender score and a new sentencing range to consider when it decided to impose the exceptional sentence.
¶13 Next, Brown argues that the issue of imposing the exceptional sentence was "final" for purposes of collateral estoppel. In support of this position, he cites to State v. Kilgore, 167 Wash.2d 28, 216 P.3d 393 (2009), for the proposition that an unchallenged exceptional sentence on appeal is final and has preclusive effect on remand should any other portion of the judgment and sentence be reversed. Suppl. Br. of Pet’r at 9.
¶14 In Kilgore, the trial court imposed an exceptional sentence of 560 months on seven counts. 167 Wash.2d at 32, 216 P.3d 393. On appeal, two counts were reversed and the other five affirmed. Id. The trial court did not elect to resentence him and instead signed an order striking the two reversed counts and changing his offender score accordingly. Id. at 34, 216 P.3d 393. We held that finality occurs when " ‘the availability of appeal’ [has] been exhausted." Id. at 43, 216 P.3d 393 (emphasis omitted) (quoting In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 327, 823 P.2d 492 (1992) ). "[A] case has no remaining appealable issues where an appellate court issues a mandate reversing one or more counts and affirming the remaining count, and where the trial court exercises no discretion on remand as to the remaining final count."
Id. at 37, 216 P.3d 393. We noted that "[a]lthough the trial court had discretion ... to revisit Kilgore’s exceptional sentence on the remaining five convictions, ... it was not reconsidering the exceptional sentence imposed on each of the remaining counts." Id. at 41, 216 P.3d 393. ¶15 Brown’s reliance on Kilgore is misplaced. It does not stand for the proposition that all exceptional sentences are final when they are not appealed. Rather, when a trial court does not exercise its discretion on remanded issues, those issues become final for purposes of reviewability. Here, because the trial court did exercise its discretion on remand to determine whether an exceptional sentence was appropriate, the issue became reviewable and is not "final."
¶16 Brown also argues...
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