State v. Williams, 82803-7-I

CourtCourt of Appeals of Washington
Writing for the CourtBIRK, J.
Decision Date13 June 2022
Docket Number82803-7-I



No. 82803-7-I

Court of Appeals of Washington, Division 1

June 13, 2022



Allen Williams challenges the trial court's order amending his judgment and sentence following remand to correct a sentencing error. In Williams's first appeal, this court affirmed his convictions but held that the combined term of confinement and community custody exceeded the statutory maximum as to five of his six convictions. Williams argues that remand is again required because his amended sentence continues to exceed the statutory maximum and because the trial court allowed him to appear at the remand hearing via videoconferencing from prison and did not affirmatively give him an invitation to speak. Williams also raises issues in his statement of additional grounds. Finding no error, we affirm.


In January 2019, following a bench trial, the court convicted Williams of six counts of felony domestic violence violation of a no-contact order (VNCO), one count of driving under the influence (DUI), and one count of escape in the third


degree. Based on an offender score of 19, the court imposed an above-range exceptional sentence consisting of 60-month concurrent standard range sentences on five of the VNCO convictions (as charged in counts 1, 5, 6, 7, and 8) and a consecutive 30-month sentence on the remaining VNCO conviction (as charged in count 4) for a total of 90 months of confinement. The court also imposed 12 months of community custody for each VNCO count.

On appeal, Williams argued insufficient evidence supported all but one of the VNCO convictions, the court imposed a clearly excessive exceptional sentence, and the terms of community custody caused his sentence to exceed the statutory maximum on all but one of the VNCO convictions. State v. Williams, No. 79652-6-I, slip op. at 1 (Wash.Ct.App. June 8, 2020) (unpublished), This court affirmed Williams's convictions and concluded that his sentence was not clearly excessive. Id. at 9. But it agreed Williams's concurrent 60-month sentences on the VNCO convictions as charged in counts 1, 5, 6, 7, and 8, when combined with their 12-month terms of community custody, exceeded the 60-month statutory maximum. Id. When a standard range term of confinement is combined with community custody, this combined term "shall be reduced by the court" if it exceeds the statutory maximum for the crime. Former RCW 9.94A.701(9) (2010). Accordingly, this court remanded to the trial court "to either amend the community custody terms or resentence on the applicable counts." Id. at 10.


A hearing on remand took place on May 26, 2021. Williams appeared via videoconferencing from prison. The State asked the court to amend the judgment and sentence by striking the 12-month community custody term from the five VNCO counts on which the court had imposed 60 months of confinement. The State argued the 12-month community custody term should remain on count 4, the VNCO count on which the court had imposed only 30 months of confinement. Because the sentence on count 4 was consecutive to those on the other VNCO counts, the resulting amended sentence would still consist of 90 months of confinement followed by 12 months of community custody. Defense counsel concurred. The court entered the order.

Williams appeals.


I. Sentence

Williams argues that his amended sentence continues to exceed the statutory maximum. He contends that remand is again required to strike the 12-month term of community custody from count 4. The State argues that Williams is barred from challenging his original sentence on a second direct appeal following this court's limited remand to correct a sentencing error, and also that the amended sentence does not exceed the statutory maximum. We agree with the State.

A defendant is generally barred from raising issues in a second appeal that were or could have been raised in the first appeal. State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894 (1983).


RAP 2.5 allows a party to raise an issue not raised in an earlier appeal where "the trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue." State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993). But a trial court's discretion to resentence on remand is limited by the scope of the appellate court's mandate. State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009). Where the appellate court vacates the original sentence or broadly remands for a new sentencing hearing, the defendant may raise sentencing issues not brought in the first appeal. State v. Toney, 149 Wn.App. 787, 792, 205 P.3d 944 (2009).

In contrast, the trial court does not retain the same discretion "when the appellate court remands for the trial court to enter only a ministerial correction of the original sentence." Id. Trial courts must strictly comply with directives from appellate courts that leave the trial court no discretion. State v. Schwab, 134 Wn.App. 635, 645, 141 P.3d 658 (2006). Where a trial court exercises no independent judgment on remand, there is no issue to review on appeal. Kilgore, 167 Wn.2d at 40. In such a case, "it is the original judgment and sentence entered by the original trial court that controls the defendant's conviction and term of incarceration." Id. at 40-41.

Here, our opinion specifically and narrowly instructed the trial court on remand "to either amend the community custody terms or resentence on the applicable counts." Williams, No. 79652-6-I, slip op. at 10. The record


demonstrates the court and the parties understood the purpose of the hearing was limited to amending the community custody terms on the five challenged counts. At the beginning of the hearing, the State noted, "[T]his matter comes on to basically amend a sentence that was imposed beyond the statutory maximum." Defense counsel "concur[red] entirely" with this approach:

I think that the intent of the Court is clear in the Judgment and Sentence by simply striking the requirements of community custody from the counts that are at 60 months. There's no need for the Court to make any additional findings. And as I explained to Mr. Williams, sort of the sentences remained unchanged. He's going to . . .
. . . .
. . . serve 90 months as determined by [the] Department of Corrections and then 12 months of community custody as by statute. I think that squares all the circles that are required.

The court responded, "All right. On counts one,...

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