State v. Eggleston, No. 38461-2-II (Wash. App. 5/11/2010)
| Decision Date | 11 May 2010 |
| Docket Number | No. 38461-2-II.,38461-2-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. BRIAN THOMAS EGGLESTON, Appellant. |
Appeal from Pierce County Superior Court. Docket No: 95-1-04883-0. Judgment or order under review. Date filed: 10/24/2008. Judge signing: Honorable Stephanie a Arend.
Counsel for Appellant(s), Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, 705 2nd Ave Ste 401, Seattle, WA, 98104-1718, Steven Witchley, Ellis Holmes & Witchley PLLC, 705 2nd Ave Ste 401, Seattle, WA, 98104-1718.
Counsel for Respondent(s), Thomas Charles Roberts, Attorney at Law, Co City Bldg, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2102.
UNPUBLISHED OPINION
Brian Eggleston appeals the trial court's imposition of murder and assault conviction sentences, raising various arguments based on trial court error. We vacate the 2008 assault conviction sentence and remand for the trial court to reinstate Eggleston's 2003 assault conviction sentence with instructions on resentencing the 2008 murder conviction sentence.
During an October 16, 1995, drug raid on his house, Eggleston shot at multiple law enforcement officers, killing one of them. State v. Eggleston, 129 Wn. App. 418, 422-23, 118 P.3d 959 (2005) (published in part) (Eggleston II). Officers arrested Eggleston and recovered "drugs, drug paraphernalia and cash." Eggleston II, 129 Wn. App. at 423. The State charged Eggleston with first degree aggravated murder, first degree assault, and four drug counts. Eggleston II, 129 Wn. App. at 424.
In Eggleston's first trial, the jury convicted him of the assault and drug charges but could not "reach a verdict on the first degree aggravated murder charge." State v. Eggleston, 164 Wn.2d 61, 66, 187 P.3d 233 (2008) (Eggleston III). On June 13, 1997, the trial court sentenced him on the assault and drug convictions. Eggleston III, 164 Wn.2d at 66.
At the second trial on the murder charge, the jury acquitted Eggleston of first degree murder but convicted him of second degree murder. Eggleston III, 164 Wn.2d at 67. On appeal, we reversed his second degree murder and assault convictions and affirmed his drug conviction sentence. State v. Eggleston, noted at 108 Wn. App. 1011, slip op. at *1 (Eggleston I).
Before Eggleston's third trial, the State filed an information charging him with second degree murder and first degree assault. Eggleston III, 164 Wn.2d at 67. The jury convicted him of both charges. Eggleston III, 164 Wn.2d at 68-69.
On January 9, 2003, the trial court sentenced Eggleston on his new second degree murder and first degree assault convictions. The trial court ordered the murder and assault convictions to run consecutively to each other but concurrent with the drug conviction sentence. Although we had already affirmed the drug conviction sentence, the trial court resentenced him on his earlier drug convictions. Finding reasons for an exceptional sentence, it imposed a 20-year exceptional sentence on the second degree murder conviction.
In his second appeal, we affirmed the murder and assault convictions from the third trial. Eggleston II, 129 Wn. App. at 438. We also affirmed the 2003 assault conviction sentence. Eggleston II, 129 Wn. App. at 438. But we vacated the 2003 exceptional sentence on the murder conviction and remanded for resentencing on it.1 Eggleston II, 129 Wn. App. at 438.
We also vacated the drug conviction sentence imposed during the 2003 resentencing and, because we had already affirmed it, we reinstated the 1997 drug conviction sentence. Eggleston II, 129 Wn. App. at 425, 438. In reinstating the 1997 sentence, we specifically commented that we "did not vacate the judgment and sentence for the drug convictions." Eggleston II, 129 Wn. App. (unpublished portion) at ¶ 157. And we emphasized that "[a]lthough the SRA2 required the third sentencing court to treat these convictions as part of Eggleston's history in sentencing him for murder and assault, the court lacked authority to resentence him on the previously obtained drug convictions to include the murder conviction in the drug crime offender scores." Eggleston II, 129 Wn. App. (unpublished portion) at ¶ 169.
Our Supreme Court granted review. It affirmed the conviction for second degree assault, rejecting Eggleston's argument that the Fifth Amendment to the United States Constitution barred his "retrial on the aggravating factor that he knew [the assault victim] was a law enforcement officer." Eggleston III, 164 Wn.2d at 70.
The court also noted that the State did not impermissibly relitigate "the fact of whether Eggleston knew the victim was a law enforcement officer" because the "jury's answer in the special verdict was unnecessary, irrelevant, and in violation of the court's instructions." Eggleston III, 164 Wn.2d at 72, 73. The court further held that "collateral estoppel did not bar introduction of evidence in the third trial that Eggleston knew [the assault victim] was a law enforcement officer." Eggleston III, 164 Wn.2d at 75.
Our Supreme Court also refused to reach Eggleston's argument that the State must resentence him within the standard range, reasoning that intervening pertinent amendments to the SRA3 "do not act retrospectively and if they did the amendments were impermissibly ex post facto." Eggleston III, 164 Wn.2d at 76. In doing so, it explained that Eggleston III, 164 Wn.2d at 77.
On remand, the trial court properly reinstated Eggleston's 1997 drug conviction sentence. It then resentenced him on both the murder and assault convictions, despite our having already affirmed the 2003 assault conviction sentence. The trial court imposed a consecutive sentence for the assault and murder convictions,4 citing former RCW 9.94A-.400(1)(b) (1995)5 (recodified as RCW 9.94A.589, Laws of 2001, ch. 10, § 6). The trial court6 then ran this new sentence consecutively to the 1997 drug conviction sentence, citing former RCW 9.94A.400(3)7 as authority. The State did not seek and the trial court did not impose an exceptional sentence.
Eggleston appeals the sentence imposed after his third trial.
We begin our analysis by summarizing Eggleston's conviction and sentence history at the trial court and on review.8
1997 Sentence: First degree assault and four drug counts, all concurrent
First Appeal: First degree assault sentence vacated
Four drug count sentences not vacated
2003 Sentence: Second degree murder, consecutive to first degree assault
Both concurrent with four drug counts
Second Appeal: Second degree murder sentence vacated
First degree assault sentence affirmed.
2008 Sentence: Second degree murder, consecutive to first degree assault.
Both consecutive to four drug counts.
Eggleston first contends that the trial court erred in applying former RCW 9.94A.400(3).9 He asserts that regardless of past piecemeal sentencing, all six convictions are current offenses10 for sentencing purposes and former RCW 9.94A.400(3) does not apply. He seeks reversal of the 2008 sentence and remand for resentencing on all six convictions.
Eggleston also argues that the assault conviction sentence must run consecutively to the murder conviction sentence while the murder and assault conviction sentences must run concurrently with the drug conviction sentence. He supports his argument by noting that on remand for resentencing, his offender score for the murder would rise to seven points, resulting in a standard range of 216 to 28811 months if the convictions are not counted as current offenses. He contends that resentencing the murder conviction illustrates the absurdity of applying former RCW 9.94A.400(3) to resentencing on appeal: If sentenced all at once, the maximum sentence is 480 months' confinement;12 but if he is resentenced on the murder conviction and the trial court applies former RCW 9.94A.400(3), the maximum sentence is 54913 months' confinement.14
We are responsible for correcting erroneous sentences. State v. Toney, 149 Wn. App. 787, 794, 205 P.3d 944 (2009). Here, in resentencing on the assault conviction, the trial court violated the law of the case doctrine.
The law of the case doctrine refers to the binding effect that an appellate court's decision has on a trial court's proceedings on remand. State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104 (2003). It also refers to the principle that appellate courts generally do not re-determine the rules of law announced or implicitly used to reach an earlier decision. Harrison, 148 Wn.2d at 562. We apply this "doctrine in order `to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.'" Harrison, 148 Wn.2d at 562 (quoting 5 Am. Jur. 2d Appellate Review § 605 (1995)).
In Eggleston II, we affirmed Eggleston's 2003 assault conviction sentence. 129 Wn. App. at 438. Nevertheless, on October 24, 2008, the trial court resentenced him on the assault conviction while resentencing on the murder conviction. Eggleston II, 129 Wn. App. at 438.
The law of the case doctrine requires that we, at a minimum, ensure that the trial court abides by our decisions. Thus, we vacate the 2008 assault conviction sentence and remand with instructions to reinstate the 2003 assault conviction sentence.15
Eggleston next contends that the trial court erred when it ordered his murder and assault...
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