State v. Landrum (In re Landrum)
| Decision Date | 20 June 2017 |
| Docket Number | c/w No. 33804-5-III,c/w No. 33805-3-III,c/w No. 33836-3-III,No. 33812-6-III,33812-6-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TAYLOR ROSS LANDRUM, Appellant. In the Matter of the Personal Restraint of TAYLOR ROSS LANDRUM, Petitioner. |
SIDDOWAY, J. — Taylor Landrum appeals following a remand for resentencing and for the trial court to conduct a post hoc review, under Bone-Club,1 of its order sealing juror questionnaires. A threshold issue is whether he complains of matters outside the scope of issues considered by the trial court on remand, and that are therefore outside the scope of this appeal. His timely personal restraint petition is consolidated with this second appeal.
We remand again for the trial court to correct the standard range for Mr. Landrum's solicitation of perjury conviction and a few clerical errors, to vacate sexual assault protection orders entered to protect three witnesses, and to strike a number of community custody conditions. Finding no merit in his personal restraint petition, we dismiss it.
In July 2008, the Benton County prosecutor charged Taylor Landrum with attempted indecent liberties for his forcible sexual advances on a 27-year-old woman in October 2006. It thereafter charged him with the second degree rape of a different, 29-year-old woman, in October 2008. It eventually added four counts of solicitation to commit first degree perjury to the second information, based on letters Mr. Landrum passed to a fellow inmate in an effort to get him to lie about the victim of the rape.
Following a consolidated trial, the jury found Mr. Landrum guilty of all charges. In sentencing Mr. Landrum, the court imposed a couple dozen community custody conditions, a number of which limited his contact with minors; his viewing of written, pictorial, or video materials; his computer and Internet use; and authorized polygraph testing at the request of his therapist or community corrections officer. No objection was made. The trial court sealed questionnaires that had been completed by jurors.
In Mr. Landrum's first appeal, this court reversed three of his solicitation of perjury convictions as inconsistent with the applicable unit of prosecution but affirmedhis remaining convictions. It ordered the trial court to determine, applying the Bone-Club factors, whether the juror questionnaires should remain sealed. On remand, the trial court vacated the order sealing the questionnaires. It resentenced Mr. Landrum, imposing a sentence of 80 months to life for the attempted indecent liberties conviction, 170 months to life for the rape conviction, and 20 months for the solicitation conviction, each to run concurrently. Over Mr. Landrum's objection, the trial court imposed the same community custody conditions originally imposed. It sentenced him to lifetime community custody and ordered him to register as a sex offender.
Turning to costs on conviction, the trial court stated its understanding that the State was willing to waive discretionary costs, which the prosecutor agreed was correct. The court then stated, "So the court would not be imposing anything other than the mandatory fees." Report of Proceedings (RP) (Mar. 18, 2015) at 111. It announced it would impose only a $500 crime victim's assessment fee, and $260 in what it referred to as clerk's and filing fees, for a total of $760 in each case. Id. at 112-13. The judgment and sentence entered for the rape conviction included a $100 DNA2 collection fee, however, for total costs of $860.
Finally, the trial court entered postconviction sexual assault protection orders in favor of the two victims of the crimes of conviction as well as three other women whose testimony about encounters with Mr. Landrum was admitted at trial under ER 404(b).
Mr. Landrum appeals again. Consolidated with the appeal is his motion for a new trial, transferred to this court for consideration as a personal restraint petition.
"The general rule is that a defendant is prohibited from raising issues on a second appeal that were or could have been raised on the first appeal." State v. Fort, 190 Wn. App. 202, 233-34, 360 P.3d 820 (2015), review denied, 185 Wn.2d 1011 (2016) (citing RAP 2.5(c); State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894 (1983); State v. Mandanas, 163 Wn. App. 712, 716, 262 P.3d 522 (2011)). This rule applies even when the issue is one of constitutional magnitude. Id. at 716-17. The proper vehicle for new issues is a personal restraint petition. Sauve, 100 Wn.2d at 87.
RAP 2.5(c)(1) nonetheless permits review "where the trial court has exercised some discretion." Mandanas, 163 Wn. App. at 716 n.2. The rule provides:
If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.
RAP 2.5(c)(1).3 The rule "'does not revive automatically every issue or decision which was not raised in an earlier appeal.'" State v. Wheeler, 183 Wn.2d 71, 78, 349 P.3d 820 (2015) (quoting State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993)). Since the rule deals with trial court decisions presently before the appellate court, it is "'[o]nly if the trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue [that] it become[s] an appealable question.'" Id. Moreover, the rule permits but does not mandate review of unremanded matters, in both the trial court and the appellate court. Barberio, 121 Wn.2d at 51.
Mr. Landrum's challenges to errors in his new judgment and sentence on the solicitation count are properly before us, as are the sexual assault protection orders requested by the State and entered at the time of resentencing. We reject the State's argument that the trial court did not exercise independent judgment to review and reconsider the community custody conditions. The State affirmatively, even if unnecessarily, re-asked that the conditions be imposed, and the trial court heard and ruled on Mr. Landrum's objection to them.
Several issues identified in Mr. Landrum's statement of additional grounds will not be considered for the first time in this second appeal, however, as discussed hereafter.
Several errors in the judgment and sentence require correction. First is the identification of the standard range for solicitation to commit first degree perjury.
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, requires that "[a]ny sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." RCW 9.94A.345. Mr. Landrum's solicitation of perjury was alleged to have occurred between October 11, 2008 and September 1, 2009. During that time, the SRA provided:
For persons convicted of the anticipatory offenses of criminal . . . solicitation . . . under chapter 9A.28 RCW, the presumptive sentence is determined by locating the sentencing grid sentence range defined by the appropriate offender score and the seriousness level of the crime, and multiplying the range by 75 percent.
RCW 9.94A.595. Mr. Landrum's offender score on the solicitation charge was an undisputed 3. Based on that offender score and first degree perjury's seriousness level of V, the standard range for the completed crime is 15 to 20 months. RCW 9.94A.515 (2008); 9.94A.510 (2008). Seventy-five percent of that range is 11.25 to 15 months, so Mr. Landrum's sentence of 20 months exceeds the maximum. While the State is correct that his total sentence is unaffected by the error, Mr. Landrum is entitled to have the sentence corrected.
Mr. Landrum also identifies two clerical errors in the judgments and sentences, both conceded by the State. "A clerical mistake is one that when amended wouldcorrectly convey the intention of the court based on other evidence." State v. Priest, 100 Wn. App. 451, 456, 997 P.2d 452 (2000). A court may correct a clerical mistake at any time. CrR 7.8(a).
First, the trial court imposed Mr. Landrum's sentence under RCW 9.94A.507, rather than RCW 9.94A.712, which was the statute in effect at the time the crimes occurred. RCW 9.94A.507 did not become effective until August 1, 2009. See LAWS OF 2008, ch. 231, §33.
Second, Mr. Landrum argues the trial court inadvertently imposed more costs than the mandatory LFOs intended. He is mistaken in contending that the court imposed $2,452.01 in LFOs in the judgment and sentence for the indecent liberties conviction; he is looking at the cost bill listing all of the county's expenses without noting that only two are marked by the court to be taxed. The total ordered by the court in that judgment and sentence was $860.
Mr. Landrum correctly argues that the $60 sheriff's fee imposed is a discretionary cost. See RCW 10.01.160(2) (). Based on its stated intention to impose only mandatory costs, the imposition of the sheriff's fee was a mistake.
However, the $100 discrepancy between the two judgments brings to light that the trial court only imposed the mandatory $100 DNA fee in the judgment and sentence for indecent liberties. The trial court and prosecutor orally expressed uncertainty as towhether the DNA fee had become mandatory, but the court orally announced it would waive the fee, recognizing it could be corrected if it was wrong. It then waived the DNA fee, but only in the judgment and sentence for rape and solicitation.
Though previously the $100 DNA fee could be waived if the court found it would result in undue hardship, in 2008 the legislature amended the statute to make the fee mandatory. See LAWS OF 2002, ch. 289, § 4; LAWS OF 2008, ch. 97, § 3; State v. Shelton, 194 Wn. App. 660, 669-70, 378 P.3d 230...
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