State v. Rowland
| Decision Date | 29 March 2011 |
| Docket Number | No. 64262–6–I.,64262–6–I. |
| Citation | 249 P.3d 635,160 Wash.App. 316 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent,v.Michael J. ROWLAND, Appellant. |
OPINION TEXT STARTS HERE
Gregory Charles Link, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.Thomas Marshal Curtis, Snohomish County Pros. Ofc., Everett, WA, for Respondent.LAU, J.
[160 Wash.App. 318] ¶ 1 This case presents the question of whether Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. Because Rowland's collateral attack on his standard range sentence did not affect the finality of his exceptional sentence, we affirm the exceptional sentence imposed at the resentencing hearing. But because Rowland was entitled to dispute a new offender score error at his resentencing hearing, we remand to correct the offender score and standard sentencing range.
¶ 2 Rowland was convicted in 1991 of first degree murder and taking a motor vehicle without permission. In re Pers. Restraint of Rowland ( Rowland II), 149 Wash.App. 496, 501, 204 P.3d 953 (2009).1 Based on an offender score of 3, Rowland's standard range was 273–361 months. Rowland II, 149 Wash.App. at 501, 204 P.3d 953. The court imposed an exceptional sentence of 180 months—for a total sentence of 541 months—based on a finding of deliberate cruelty.2 Rowland II, 149 Wash.App. at 501, 204 P.3d 953. Rowland appealed his judgment and sentence and this court affirmed in all respects. State v. Rowland ( Rowland I), noted at 76 Wash.App. 1072, 1995 WL 925646 (1995); see also Rowland II, 149 Wash.App. at 501, 204 P.3d 953. The mandate was issued on June 26, 1995. Rowland II, 149 Wash.App. at 501, 204 P.3d 953.
¶ 3 In January 2007, Rowland filed a personal restraint petition (PRP), challenging his offender score on the basis that his prior California conviction for burglary was not comparable to a Washington burglary. Rowland II. 149 Wash.App. at 503–04, 204 P.3d 953. We accepted the State's concession of error, holding that the offender score should have been 2 rather than 3. Rowland II, 149 Wash.App. at 507, 204 P.3d 953. We “remanded for resentencing,” reasoning,
Rowland's sentence is being remanded because, at the time the trial court selected 541 months as the appropriate length of the exceptional sentence, the court did not have in mind the correct standard range. The error in the offender score potentially bears upon the length of the exceptional sentence, but it does not implicate the findings that justified imposition of the exceptional sentence.
Rowland II, 149 Wash.App. at 512, 204 P.3d 953.
¶ 4 At the time of Rowland's original sentence, the law allowed a sentencing court to impose an exceptional sentence based on judicial fact-finding. But when we granted Rowland's PRP, Blakely required that “ ‘[o]ther 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.’ ” 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)). Our Supreme Court subsequently held that Blakely was not retroactive. State v. Evans, 154 Wash.2d 438, 448, 114 P.3d 627 (2005). The Rowland II court “[r]emanded for resentencing,” but refused to assume that the State would seek an exceptional sentence on remand and declined to decide whether Blakely would apply if it did. Rowland II, 149 Wash.App. at 511–12, 204 P.3d 953.
We are not satisfied that the discovery of a mistake in the calculation of Rowland's offender score should be the occasion, in a collateral attack, for wiping out his exceptional sentence altogether—constitutional relief under Blakely to which he would not otherwise be entitled. We leave these matters for briefing and argument before the trial court on remand.
Rowland II, 149 Wash.App. at 512, 204 P.3d 953. We remanded the case to the trial court and the mandate was issued on May 15, 2009, for “further proceedings in accordance with the attached true copy of the opinion.” Neither party sought review in the Supreme Court.
¶ 5 At the resentencing hearing on September 16, 2009, the court heard from three members of the victim's family,3 Rowland, and counsel for the State and Rowland. Both Rowland and the State submitted sentencing briefs. The court stated that Blakely did not apply on resentencing, and it distinguished between what it was required to reconsider on remand (the standard range sentence) from the exceptional sentence.
Mr. Rowland, I gave a great deal of thought to the sentence that I imposed when I sentenced you 18 years ago. I see no reason to change that sentence now, not up, not down. And I'm not going to, except the fact that the sentencing score has changed.... [W]hen I sentenced you, it was the intent to treat you and [your co-accused] equal in that I was sentencing you to the high end of the range along with 15 years as an exceptional sentence to both of you. That was my intent, and there is no reason to depart from that now.
So I now sentence you to the high end of the range with a score of two, which is 347 months plus 180 months, which is 15 years for the exceptional sentence that I imposed 18 years ago, and I re-impose that. 4
Report of Proceedings (Sept. 16, 2009) (RP) at 24–25. The difference between Rowland's original sentence and his current sentence for first degree murder is summarized below:
+--------------------------------------------------------------------------+
¦ ¦Offender¦ ¦Standard ¦Exceptional¦Total ¦
¦ ¦ ¦ ¦Range ¦ ¦ ¦
+---------------+--------+-------------+-------------+-----------+---------¦
¦ ¦Score ¦Standard ¦Sentence ¦Sentence ¦Sentence ¦
¦ ¦ ¦Range ¦ ¦ ¦ ¦
+---------------+--------+-------------+-------------+-----------+---------¦
¦Original ¦3 ¦271–361 ¦361 months ¦180 months ¦541 ¦
¦Sentence ¦ ¦months ¦ ¦ ¦months ¦
+---------------+--------+-------------+-------------+-----------+---------¦
¦Resentencing ¦2 ¦261–347 ¦347 months ¦180 months ¦527 ¦
¦ ¦ ¦months ¦ ¦ ¦months ¦
+--------------------------------------------------------------------------+
¶ 6 In addition, Rowland argued that his offender score was still wrong because it “separately counted two concurrently imposed convictions from before 1986.” Br. of Appellant at 5. Rowland maintained that under former RCW 9.94A.360(6)(c) (1991), convictions prior to 1986 that were concurrently imposed were required to be counted as a single point. The State argued that the law of the case doctrine precluded the court from considering Rowland's offender score contention and that Rowland waived the issue by not raising it in his PRP. The court ruled, “[T]he State is correct in that the offender score is a two.” RP at 22.
¶ 7 The court entered a new judgment and sentence with the revised sentence. It re-filed the original 1991 appendix to the judgment and sentence, detailing “substantial and compelling reasons” for imposition of the exceptional sentence.
¶ 8 Rowland first argues that the resentencing court erred in concluding that Blakely did not apply at resentencing and imposing an exceptional sentence based solely on judicial fact-finding. The State counters that because this court considered and affirmed Rowland's exceptional sentence on his direct appeal, the law of the case doctrine bars further review.
¶ 9 Rowland relies primarily on State v. McNeal, 142 Wash.App. 777, 175 P.3d 1139 (2008). There, McNeal's sentence was affirmed on direct appeal. In a subsequent PRP, the court held that the sentence on one of his counts, possession with intent to deliver, exceeded the statutory maximum. The court “ ‘vacated’ and remanded McNeal's sentence for his drug conviction [but] ... left his sentences for the other counts intact.” McNeal, 142 Wash.App. at 784, 175 P.3d 1139. The resentencing court found that Blakely did not apply since McNeal's direct appeal was final before Blakely was decided. McNeal, 142 Wash.App. at 784, 175 P.3d 1139. The court “adopted the previous court's findings of fact and conclusions of law supporting the exceptional sentences, which it reimposed....” McNeal, 142 Wash.App. at 785, 175 P.3d 1139.
¶ 10 McNeal appealed his resentencing, and the State conceded error on the Blakely issue. The court held,
In In re Personal Restraint of Skylstad, our Supreme Court recently explained that a conviction is “final” for PRP time-bar purposes only if both the conviction and the sentence are final. 160 Wash.2d 944, 949–50, 162 P.3d 413 (2007). Once we vacated McNeal's original sentence, there was no longer a final sentence, the case was no longer final, and the trial court, therefore, erred when it found that Blakely did not apply to McNeal's resentencing on remand.
McNeal, 142 Wash.App. at 786–87, 175 P.3d 1139 (footnotes omitted). The court then concluded that the resentencing court had erred by imposing the exceptional consecutive sentences under RCW 9.94A.589(1)(a) because “a jury must find facts supporting an exceptional sentence beyond the standard range.” McNeal, 142 Wash.App. at 788, 175 P.3d 1139.
¶ 11 Our Supreme Court reached the opposite conclusion in State v. Kilgore, 167 Wash.2d 28, 216 P.3d 393 (2009). Kilgore was originally convicted of three counts of rape of a child and four counts of child molestation in 1998. The trial court found five...
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