State v. Kilgore

• Decision Date: 27 November 2007
• Docket Number: No. 34053-4-II.,34053-4-II.
• Citation: 172 P.3d 373,141 Wn. App. 817
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mark Patrick KILGORE, Appellant.

172 P.3d 373

141 Wn. App. 817

STATE of Washington, Respondent, v. Mark Patrick KILGORE, Appellant.

No. 34053-4-II.

Court of Appeals of Washington, Division 2.

November 27, 2007.

James Robert Dixon, Dixon & Cannon, Ltd., Seattle, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.

PUBLISHED OPINION

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 Wash.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 CM) and remanded "for further proceedings"; we affirmed the remaining five convictions. State v. Kilgore, 107 Wash.App. 160, 178, 190, 26 P.3d 308 (2001), aff'd, 147 Wash.2d 288, 53 P.3d 974 (2002). The Washington Supreme Court accepted review on a single ER 404(b) issue. The Court affirmed our decision. State v. Kilgore, 147 Wash.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, 124 S.Ct. 2531 (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, 124 S.Ct. 2531.

¶ 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 Wash.2d 438, 448, 114 P.3d 627, cert. denied, 546 U.S. 983, 126 S.Ct. 560, 163 L.Ed.2d 472 (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 resentencing 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 remand;⁴ 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 Wash.App. 552, 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. Argo, 81 Wash.App. at 569, 915 P.2d 1103. See also State v. Fleming, 140 Wash. 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 Wash.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 nine; (2) he fails to show how a recalculated offender score greater than nine 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...