State v. Parmelee

292 P.3d 799

STATE of Washington, Respondent,

v.Allan Wesley PARMELEE, Appellant.

No. 66918–4–I.

Court of Appeals of Washington, Division 1.

Jan. 22, 2013.

Casey Grannis, Nielsen Broman & Koch PLLC, Seattle, WA, Allan Parmelee, Airway Heights, WA, for Appellant.

Amy R. Meckling, King County Prosecutor's Office, Seattle, WA, for Respondent.

APPELWICK, J.

¶ 1 Parmelee appeals from his resentencing for a 2004 conviction of two counts of first degree arson. The Washington Supreme Court vacated Parmelee's initial exceptional sentence based solely on the lack of jury findings required under Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On remand, the trial court imposed an exceptional sentence of 130 months on each count, to run consecutively, based on its finding that the presumptive standard range sentence was “clearly too lenient.” Parmelee argues that the trial court miscalculated his offender score and lacked statutory authority to impose an exceptional sentence based on a statutory aggravator that no longer exists. Parmelee also argues that the new statutory aggravator violates the ex post facto clause, so he must be resentenced within the standard range. The trial court did not independently review and calculate Parmelee's offender score. It properly retained the offender score from the first sentencing. The trial court had statutory authority to impose an exceptional consecutive sentence based on the statutory aggravator in effect when Parmelee committed his crimes. No ex post facto clause violation occurred. We affirm.

FACTS

¶ 2 In April 2004, a jury convicted Allan Parmelee on two counts of first degree arson for firebombing a vehicle in 1998 and another in 2002. The trial court calculated Parmelee's offender score to be 13, based on 17 federal convictions for alien smuggling and conspiracy, two counts of deceptive practices in Illinois, and a Washington conviction for stalking. The trial court imposed an exceptional sentence of 288 months on each arson count, to run concurrently. This was based in part on its finding that a presumptive standard range sentence would be clearly too lenient. Parmelee timely appealed his sentence and filed a personal restraint petition (PRP). But, he abandoned the appeal when he did not pay the required filing fee and later moved to voluntarily withdraw his PRP.

¶ 3 Three weeks after Parmelee's sentencing, the United States Supreme Court decided Blakely, which held that the Sixth Amendment requires aggravating sentencing factors, other than the fact of a prior conviction, to 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)). Five years later, the United States Supreme Court limited Blakely by allowing trial judges to make findings of fact necessary to impose consecutive exceptional sentences. Oregon v. Ice, 555 U.S. 160, 163–64, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).

¶ 4 In 2008, Parmelee filed a PRP directly with the Washington Supreme Court arguing that the trial court miscalculated his offender score and violated Blakely by finding an aggravating factor a jury needed to find. The State conceded that the Blakely error required remand for resentencing, but argued the offender score issues were time barred. The Court granted Parmelee's petition only on the exceptional sentence issue. It vacated his sentence based on the Sixth Amendment violation under Blakely and remanded for resentencing.

¶ 5 At resentencing, the State requested that Parmelee be sentenced to 144 months on each count, to run consecutively. The State also argued that the issue of Parmelee's offender score was not before the court, because the case was remanded only on the exceptional sentence issue. Nonetheless, Parmelee, appearing pro se, asserted that his 17 federal convictions constituted same criminal conduct so they should be scored as a single point. He also argued that his Illinois convictions were not comparable to any Washington offense, so they should not be counted in his offender score. As a result, he explained, his offender score should really be only three points, so an exceptional sentence was inappropriate.

¶ 6 The trial court imposed 130 months on each count, to run consecutively. To support this exceptional sentence, the trial court relied on Parmelee's high offender score of 13 and its finding that running the sentences concurrently within the standard range would result in one of Parmelee's current offenses going unpunished—so he would essentially receive a “free crime.” The trial court concluded that “[t]he operation of the multiple offen[s]e policy would be clearly too lenient without imposition of consecutive sentences in this matter.” Parmelee appeals.

DISCUSSION

¶ 7 Parmelee makes five arguments on appeal. The first three go to the calculation of his offender score. First, he argues that his federal convictions for alien smuggling and conspiracy constitute the same criminal conduct, so they should be calculated as only one point instead of eight. Second, he argues that his two Illinois convictions for deceptive practices are not legally or factually comparable to Washington's unlawful issuance of checks or drafts statute, so those convictions should not count toward his offender score. Third, in his statement of additional grounds, Parmelee also argues that the trial court erred by including a point for a prior conviction that was awaiting resentencing. Fourth, Parmelee asserts that the trial court at resentencing did not have statutory authority to impose an exceptional sentence based on the clearly too lenient aggravating factor, because it no longer exists post-Blakely under the new aggravator statute. Finally, Parmelee argues that applying the new statutory free crime aggravator would violate the ex post facto clause of the federal and state constitutions, because it makes it easier for the trial court to impose an exceptional sentence. U.S. Const. art. I, § 10, cl. 1; Const. art. 1, § 23.

I. Offender Score

¶ 8 On remand, an issue becomes appealable only if the trial court exercised its independent judgment to review and rule again. State v. Barberio, 121 Wash.2d 48, 50, 846 P.2d 519 (1993) (citing RAP 2.5(c)(1)); see also State v. Kilgore, 167 Wash.2d 28, 37, 216 P.3d 393 (2009) (discussing Barberio ). In Barberio, the defendant did not challenge his exceptional sentences on appeal. 121 Wash.2d at 49, 846 P.2d 519. At resentencing, he challenged for the first time the aggravating factors supporting his original exceptional sentence. Id. at 49, 846 P.2d 519. The trial court declined to address the issue, and imposed the same exceptional sentence as before. Id. at 50, 846 P.2d 519. The trial court was explicit that it was not considering anew the prior exceptional sentence: “ ‘So far as I'm concerned, I really don't know why it would be necessary for me to revisit the issue.’ ” Id. at 51, 846 P.2d 519. The court permitted counsel to argue his position on the issue, but again responded that it was unclear whether counsel was even properly before the court on that issue. Id. at 51–52, 846 P.2d 519. The trial court acted within its discretion to decide whether to revisit an issue that was not the subject of appeal. Id. at 51, 846 P.2d 519. The appellate court then properly denied review of the exceptional sentence issue, because the trial court declined to independently review it and rule again. See Id. This rule both promotes judicial economy and encourages timely appeals. See id. at 52, 846 P.2d 519. In Kilgore, the Washington Supreme Court affirmed the vitality of the Barberio rule post-Blakely.167 Wash.2d at 40–41, 216 P.3d 393;see also State v. Rowland, 160 Wash.App. 316, 325, 329, 249 P.3d 635 (2011), aff'd,174 Wash.2d 150, 272 P.3d 242 (2012).

¶ 9 At the original sentencing, Judge Spector calculated Parmelee's offender score to be 13. Parmelee then filed a timely PRP and a timely notice of appeal in the court of appeals. However, he abandoned his appeal when he did not pay the required filing fee, and he withdrew his PRP. Four years later, he filed a PRP directly with the Washington Supreme Court, again challenging his offender score, as well as his exceptional sentence post-Blakely. The State maintained that the offender score issues were time-barred under RCW 10.73.090, which requires collateral attacks to be filed within one year of final judgment. The Supreme Court granted Parmelee's petition only on the issue of whether his exceptional sentence violated the Sixth Amendment under Blakely. It then vacated and remanded his original exceptional sentence.

¶ 10 On remand, Judge Armstrong repeatedly indicated that the exceptional sentence issue was the only one before the court. At the beginning of the presentencing hearing, Parmelee stated that a number of issues needed to be addressed. Judge Armstrong replied:

Well actually the way I read the record is the only issue that we can address, given the law of the case and given the finality of everything else, the only issue we can address is whether there should be an exceptional sentence.

We can't, for example, address your offender score; that is not before us.

Soon after, Parmelee made arguments about his offender score, but Judge Armstrong again reminded him they were “irrelevant to [the] decision,” because “that issue has gone by.” After confirming that Parmelee waived his right to counsel, Judge Armstrong told Parmelee he could describe in briefing why a mitigated sentence was appropriate, but explained:

[T]he issue here is not everything that ever happened in this case from the time you were arrested, the issue here is the narrow legal issue of whether the Court can, or whether it should run your time consecutively as an exceptional sentence, because of the multiple offense policy under the SRA.

Thus, Judge Armstrong made clear before...