State v. Edwards

1

STATE OF WASHINGTON, Respondent, v. NELSON LAMONT EDWARDS, JR., Appellant.

No. 39555-3-III

Court of Appeals of Washington, Division 3

September 10, 2024

UNPUBLISHED OPINION

STAAB J.

Nelson Lamont Edwards Jr. appeals the second amended judgment and sentence following remand from his first appeal. Edwards asserts that the resentencing court failed to comport with this court's instructions in Edwards I^[1] and his offender score was consequently miscalculated because the State did not meet its burden of proof to establish the prior convictions used to calculate the offender score, and at least one of the prior convictions should wash out.

The State agrees that Edwards's offender score was miscalculated, but asserts that the offender score should be higher, not lower. We remand again for a de novo resentencing.

BACKGROUND

A Edwards's First Appeal

Following a bench trial, Nelson Lamont Edwards Jr. was found guilty of third degree assault, obstructing law enforcement, and possession of a controlled substance (PCS). He was sentenced for the crimes on January 25, 2021. The judgment identified two counts of third degree assault as current convictions under a different cause number, and five prior convictions were listed in the criminal history.

The prior convictions included second degree malicious mischief (July 21, 2010), second degree burglary (September 20, 2010) two instances of PCS (March 23, 2012 and May 16, 2012), and a community custody violation (September 24, 2015). Based on this data, the court determined that Edwards's offender score was 7. Edwards appealed this judgment and sentence. In his appeal, Edwards challenged his offender score, including the prior convictions for PCS and the potential washout of prior convictions.

Shortly after Edwards filed his appeal, our Supreme Court decided Blake, which invalidated Washington's strict liability drug possession statute as unconstitutional. State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). In response to Blake, and without receiving permission from this court, Edwards was resentenced. While commending the parties for attempting to resolve the issue quickly, we voided the amended judgment and sentence, reversed the original judgment and sentence, and remanded for resentencing. Edwards I, 23 Wn.App. 2d at 120.

As part of our decision in the first appeal, we acknowledged the State's position that one of Edwards's prior drug convictions was not PCS, but delivery of a controlled substance, and advised the parties to resolve this issue on resentencing. Id. at 120 n.1. Similarly, we noted Edwards's theory that the removal of invalid PCS convictions may wash out other prior convictions from the offender score, but this court did not address that argument on the merits. Id. at 121.

Finally, this court provided the following instructions:

Mr. Edwards's current conviction for simple possession of a controlled substance must be dismissed under Blake. In addition, any prior convictions for possession of a controlled substance must be eliminated from the offender score....

We remand for resentencing pursuant to Blake. Resentencing shall be de novo, with the parties free to advance any and all factual and legal arguments regarding Mr. Edwards's offender score and sentencing range.

Id. at 122.

B. Resentencing Hearing

On November 12, 2022, the superior court held a resentencing hearing. Despite our decision remanding for a full resentencing, the parties suggested to the superior court that remand was limited and the Court of Appeals was retaining jurisdiction. The State introduced the matter with its interpretation of this court's instructions in Edwards I:

We then entered, on July 15th, a[n] amended felony judgment and sentence that eliminated the possession of a controlled substance, Count 3, because the Court had said that was no longer a viable count. And also removing any reference to any possession of a controlled substance....

[The Court of Appeals] then indicated that the only valid judgment and sentence was the January 25th, 2021, judgment and sentence and they let that stand as it was at, but for the directions to take care of the Blake matters, which was what we attempted to do in July.

Rep. of Proc. (RP) at 4-5. Defense counsel then asserted:

[T]he Court of Appeals has decided we're not going to address the substantive merits of your appeal until we get a corrected felony judgment and sentence. And that's what we're doing today.

But as soon as we do that, his appeal will go forward with the, you know, it could be his conviction will be thrown out sometime down the road.

RP at 5-6.

The State presented a second amended judgment and sentence, stating that it mirrored what the parties attempted to do in July. The PCS conviction was removed as a current offense, both PCS prior convictions were removed from the criminal history, and the offender score was 4. Defense counsel asserted: "[T]his is an agreed judgment and sentence . . . where we simply have recalculated his offender score and-and lowered his sentence substantially from what was originally imposed." RP at 6.

Edwards began to tell the court his story about the crimes he was being sentenced for and the court reminded him that it was constrained to the matter of resentencing and would not evaluate his crimes on the merits. The court said its role was "to make [Edwards's] sentence go down because of the Blake decision, the . . . removal of all of the controlled substance charge[s]." RP at 8.

Then Edwards, through counsel, asked the court to eliminate the time remaining on community custody: "[H]e would absolutely like you to exercise your discretion to just say this case is over as far as sentencing and let the-let the Court of Appeals do what it's going to do on the merits." RP at 11. Edwards was further heard on the issue but, after discussion, the court declined to reduce community custody.

There was no discussion at the hearing specifically regarding the calculation of Edwards's offender score, the accuracy or validity of the prior convictions listed in the criminal history, or whether any prior convictions washed out. The court told Edwards, "what I'm finding is that it looks to me like they have written out a . . . sentence which now complies with the law. And so, I am willing to go ahead and sentence you on the case to this new sentence." RP at 9.

After the court signed the new judgment, the State asserted: "[J]ust for the record, [Edwards] has indicated that there is now a sentence that comports with the law.... I am not entirely certain that the mandate indicates that there is anything left . . . pending at the Court of Appeals." RP at 15. After a short discussion between the attorneys, the court concluded:

The way I read [the opinion] is what [the court of appeals] directed us to do is to do a proper sentencing and to give everybody the chance to argue whatever they wanted to at this sentencing with everything back up and I- I have listened to what everybody has to say.

RP at 17.

Edwards appeals.

ANALYSIS

The parties agree this case should be remanded for resentencing but for different reasons. Edwards asserts that the resentencing court failed to comport with this court's instructions in Edwards I and his offender score was consequently miscalculated. He argues that the State did not meet its burde'n of proof to establish the prior convictions used to calculate the offender score, and at least one of the prior convictions should wash out.

The State agrees that Edwards's offender score was miscalculated, but asserts that the offender score should be higher, not lower. The State asserts that one of the PCS prior convictions should not have been removed under Blake because the conviction was actually for delivery of a controlled substance, not possession. If correct, this may affect whether other prior convictions wash out.

Regardless, the failure to prove and accurately calculate Edwards's offender score requires us to remand for a full de novo resentencing. State v. Hunley, 175 Wn.2d 901, 287 P.3d 584 (2012) (the State's failure to prove the defendant's prior convictions requires resentencing); State v. Schwartz, 194 Wn.2d 432, 438, 450 P.3d 141 (2019).

This court provided the resentencing court with four distinct instructions: (1) the July 15, 2021 amended judgment and sentence was void and unenforceable, (2) the current conviction for PCS was reversed under Blake, (3) any prior convictions of PCS were to be removed from the offender score in accordance with Blake, and (4) resentencing was de novo, requiring the State to prove any prior convictions as well as requiring the parties to raise issues of washout. Edwards I, 23 Wn.App. 2d at 119-22. While the parties and court complied with the first three instructions, they failed to conduct a de novo resentencing.

"When a reviewing court reverses or vacates a sentence, resentencing is de novo in nature." State v. Dunbar, 27 Wn.App. 2d 238, 245, 532 P.3d 652 (2023). "Resentencing must proceed as an entirely new proceeding when all issues bearing on the proper sentence must be considered de novo and the defendant is entitled to the full array of due process rights." Id. Accordingly, this court remanded for resentencing providing that "resentencing shall be de novo, with the parties free to advance any and all factual and legal arguments regarding Mr. Edwards's offender score and sentencing range." Edwards I, 23 Wn.App. 2d at 122.

As such, the resentencing court should have employed the three-step process to calculate an offender score: identify all prior convictions, remove those that wash out, and count the remaining prior convictions to result in the offender score. State v. Moeurn, 170 Wn.2d 169, 175, 240...