State v. Kilgore

Decision Date24 September 2009
Docket NumberNo. 81020-6.,81020-6.
Citation216 P.3d 393,167 Wn.2d 28
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Mark Patrick KILGORE, Petitioner.

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

Kathleen Proctor, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.


¶ 1 A jury convicted Mark Patrick Kilgore of three counts of rape of a child and four counts of child molestation. The trial court imposed an exceptional sentence of 560 months for each count to be served concurrently. Two counts were reversed on appeal and the remaining five counts affirmed. The case was remanded for retrial, but the State elected not to retry the two reversed counts. After the mandate was issued terminating direct review of Kilgore's case, but before the trial court corrected Kilgore's judgment and sentence to reflect the reversed counts, the United States Supreme Court issued Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

¶ 2 Kilgore argues that his case was not final for purposes of retroactivity when Blakely was decided and that the trial court erred when on remand it refused to resentence Kilgore in accordance with the requirements of Blakely. Kilgore also argues the Court of Appeals erred when it granted the State's motion to dismiss for failure to raise an appealable issue.

¶ 3 We hold the Court of Appeals did not err when it dismissed Kilgore's appeal because no appealable issues remained. As Kilgore had exhausted the availability of direct review prior to the United States Supreme Court's decision in Blakely, his case was necessarily final when the trial court declined to resentence him on remand.


¶ 4 The State charged Kilgore with four counts of child molestation in the first degree and three counts of rape of a child in the first degree. The State alleged in counts one and two that on multiple occasions Kilgore molested and raped C.M., Kilgore's stepniece. Counts three through seven charged Kilgore with molesting and raping his stepdaughter, A.B., and two brothers-in-law on multiple occasions. On October 1, 1998, a jury found Kilgore guilty of all seven counts.

¶ 5 The trial court sentenced Kilgore on December 1, 1998. Kilgore's offender score was 18. The standard sentencing range for child molestation in the first degree was 149-198 months, and for child rape in the first degree, 210-280 months. Former RCW 9.94A.310, .320 (1995). The trial court imposed an exceptional sentence of 560 months for each count to run concurrently. The trial court found the following aggravating factors: (1) violation of a position of trust, (2) vulnerable victims, (3) multiple victims and multiple incidents per victim, (4) lack of remorse or acceptance of responsibility, and (5) deliberate cruelty.

¶ 6 Kilgore appealed but did not challenge his exceptional sentence. The Court of Appeals reversed counts one and two, affirmed the remaining five counts, and remanded "for further proceedings," which could include retrial of counts one and two. State v. Kilgore, 107 Wash.App. 160, 190, 26 P.3d 308 (2001) (Kilgore I).1 We affirmed the Court of Appeals. State v. Kilgore, 147 Wash.2d 288, 295, 53 P.3d 974 (2002). Our decision became final on October 7, 2002. We mandated the case to the superior court for further proceedings in accordance with our opinion and for the assessment of costs. The time for Kilgore to file a petition for certiorari expired 90 days later on January 5, 2003.

¶ 7 On remand, the State declined to retry Kilgore on counts one and two. At a hearing before the trial court on October 7, 2005,2 Kilgore argued the trial court must resentence him in accordance with Blakely. The trial court denied Kilgore's motion for resentencing, ruling: (1) Kilgore's case was final on October 7, 2002; (2) Kilgore was entitled to an order correcting his judgment and sentence; (3) Kilgore was not entitled to a new sentencing hearing; and (4) "[a]ll other terms and conditions of the original Judgment and Sentence shall remain in full force and effect as if set forth in full herein." Clerk's Papers per Request of Appellant at 100-01. The trial court then signed a motion and order correcting the judgment and sentence, striking counts one and two from Kilgore's judgment and sentence, and correcting his offender score.

¶ 8 In a divided opinion,3 the Court of Appeals held, because the trial court was not required to address Kilgore's remaining convictions on remand and did not, Kilgore's judgment and sentence was final when this court issued its mandate on October 7, 2002. State v. Kilgore, 141 Wash.App. 817, 826-27, 172 P.3d 373 (2007) (Kilgore III). The Court of Appeals also granted the State's motion to dismiss, holding the Court of Appeals was bound by State v. Barberio, 121 Wash.2d 48, 846 P.2d 519 (1993). The Court of Appeals held it could not review Kilgore's sentence because the trial court did not revisit this issue on remand. Kilgore III, 141 Wash. 828, 172 P.3d 373 (citing Barberio, 121 Wash.2d at 50, 846 P.2d 519).

¶ 9 Kilgore petitioned this court for review, arguing the Court of Appeals erred in determining his judgment became final before the trial court acted on remand and in concluding Barberio barred review where there has been an intervening change in law, making his original sentence unconstitutional. We granted Kilgore's petition for review. State v. Kilgore, 164 Wash.2d 1001, 190 P.3d 55 (2008).


Whether direct review was available to allow application of Blakely to invalidate Kilgore's exceptional sentence, despite the trial court's refusal to exercise its discretion on remand.


¶ 10 Kilgore argues his sentence is in violation of Blakely and must be reversed. Blakely applies only to cases pending on direct review or not yet final. State v. Evans, 154 Wash.2d 438, 444, 114 P.3d 627 (2005) (quoting In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 326, 823 P.2d 492 (1992) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) and Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (O'Connor, J., opinion))). Therefore, "[t]he critical issue in applying the current retroactivity analysis is whether the case was final when the new rule was announced." St. Pierre, 118 Wash.2d at 327, 823 P.2d 492. We define finality for purposes of retroactive application of a new rule of law as the point at which "`a judgment of conviction has been rendered the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.'" Id. (quoting Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708 n. 6 (citing United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982))).

¶ 11 Kilgore invites this court to adopt tests created by federal courts of appeal to determine finality where cases have been remanded following the reversal of some, but not all, counts.4 Although we generally follow federal retroactivity analysis, Evans, 154 Wash.2d at 444, 114 P.3d 627, it is state law, particularly our rules of appellate procedure, that determines whether a petitioner has exhausted his right to appeal in state court. "A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (emphasis added). Whether a defendant has exhausted his right to direct review in state court dictates in part whether his case is final for purposes of retroactivity. State v. Hanson, 151 Wash.2d 783, 790, 91 P.3d 888 (2004). Although Kilgore attempts to separate the two,5 finality and reviewability are intrinsically bound.

¶ 12 "Finality for purposes of retroactivity analysis is determined by the case as a whole, not individual issues." St. Pierre, 118 Wash.2d at 330, 823 P.2d 492. Nevertheless, "the finality of that portion of the judgment and sentence that was correct and valid at the time it was pronounced" is unaffected by the reversal of one or more counts. In re Pers. Restraint of Carle, 93 Wash.2d 31, 34, 604 P.2d 1293 (1980) (citing McNutt v. Delmore, 47 Wash.2d 563, 565, 288 P.2d 848 (1955), overruled in part on other grounds by State v. Sampson, 82 Wash.2d 663, 513 P.2d 60 (1973)). Therefore, 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 counts. Barberio, 121 Wash.2d at 51. 846 P.2d 519. "Only if the trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue does it become an appealable question." Id. at 50, 846 P.2d 519. In order to determine whether Kilgore's case was final for purposes of retroactivity when Blakely was decided, we must first determine whether any appealable issues remained when the trial court corrected Kilgore's judgment and sentence.

¶ 13 "RAP 12.7[6] defines the finality of a decision by an appellate court. Once an appellate decision is final, review as a matter of right is exhausted." Hanson, 151 Wash.2d at 790, 91 P.3d 888 (footnote omitted). Finality is the point at which the appellate court loses the power to change its decision. RAP 12.7(a), (b). This occurs when the appellate court issues its mandate, when this court accepts review, or when the Court of Appeals issues a certificate of finality. Id. The pendency of a case otherwise final under RAP 12.7 can be revived pursuant to RAP 2.5(c).7 RAP 12.7(d).

¶ 14 We have interpreted RAP 2.5(c)(1) to allow trial courts, as well as appellate...

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