State v. Ross

STATE OF WASHINGTON, Respondent v. AZIAS DEMETRIUS ROSS, Appellant.

No. 81031-6-I

Court of Appeals of Washington, Division 1

August 3, 2020

UNPUBLISHED OPINION

ORDER DENYING MOTION FOR RECONSIDERATION, WITHDRAWING OPINION, AND SUBSTITUTING OPINION

Appellant Azias Ross filed a motion for reconsideration of the opinion filed on June 15, 2020. The court has determined that the motion should be denied. However, the opinion should be withdrawn, and a substitute opinion filed.

Now therefore, it is hereby

ORDERED that the motion for reconsideration is denied; and it is further

ORDERED that the opinion filed on June 15, 2020, is withdrawn; and it is further

ORDERED that a substitute opinion shall be filed.

CHUN J.

At the age of 19, Azias Ross acted as the get-away driver in a series of home invasions, leading a jury to convict him of ten felony offenses, with multiple firearm enhancements and a deadly weapon enhancement. The trial court sentenced Ross to 507 months for his role in these crimes. In a prior appeal Division Two of this court reversed Ross's sentences on two counts, concluding they exceeded the statutory maximum for the crimes when combined with the firearm enhancements. The court remanded the case with instructions to resentence Ross on these two counts "not to exceed the statutory maximum sentence." It also concluded the Judgment and Sentence erroneously numbered a third count applicable to Ross and remanded to correct that scrivener's error.

On remand, Ross argued the trial court had the discretion to resentence him on all ten counts and to consider his youth as a mitigating factor in imposing new sentences. The court determined it lacked discretion to do so and denied his request. Ross appealed and filed a personal restraint petition (PRP) that asserts other trial and sentencing errors.

We conclude the trial court did have discretion to consider Ross's request for a new sentencing hearing and thus abused its discretion in not considering his request. We remand to the trial court to consider whether to grant Ross a new sentencing hearing. We deny the PRP.

I. BACKGROUND

A jury convicted Ross of conspiracy to commit first degree burglary, two counts of first degree burglary, two counts of first degree robbery, three counts of first degree trafficking in stolen property, unlawful imprisonment, and theft of a firearm. Each, except the theft of a firearm count and one of his trafficking counts, included a firearm enhancement. The trafficking count without a firearm enhancement included a deadly weapon enhancement. The jury also convicted Ross of two counts of assault and another robbery count, but the trial court determined those convictions violated double jeopardy and dismissed them without prejudice.

On appeal, Division Two of this court affirmed Ross's convictions. State v. Oeung, noted at 196 Wn. App. 1011, slip op. at 70 (2016).^[1] But it remanded to resentence Ross for his conspiracy and unlawful imprisonment counts because his sentences, when combined with their firearm enhancements, exceeded the statutory maximum sentence. Oeung, slip op. at 70. It also remanded to acknowledge a scrivener's error as to the trafficking count with a deadly weapon enhancement and remanded that count for resentencing. Oeung, slip op. at 70. Finally, it remanded to have the dismissal on double jeopardy grounds to be with prejudice. Oeung, slip op. at 70.

Upon remand, Ross argued that because Division Two had remanded two of his convictions for resentencing on the merits, the trial court had discretion to fully resentence him on all counts. He also argued that changes in the law for youth sentencing required the court to meaningfully consider his youthfulness when resentencing him, and that the firearm enhancements in his sentence could run concurrently. The court ultimately denied Ross's request for a full resentencing on the ground that it lacked the discretion to do so. The court also distinguished the case Ross relied on in arguing that his firearm enhancements could run concurrently-State v. Houston-Sconiers^[2]-on the ground that Ross was not a juvenile when he committed his crimes. Ross appeals. Ross also submits a PRP related to issues at his trial and at sentencing.

II. ANALYSIS

A. Direct Appeal

In his direct appeal, Ross argues the trial court abused its discretion by failing to recognize its discretion to fully resentence him on all counts. We agree.

A trial court has discretion on remand to revisit issues that were not the subject of a previous appeal. State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009) (citing State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993)). An appellate court's mandate limits the scope of a trial court's discretion to resentence on remand. Kilgore, 167 Wn.2d at 42. But if the mandate does not limit the trial court to only ministerial corrections, then the court may conduct a full resentencing proceeding. State v. Toney, 149 Wn. App. 787, 792–93, 205 P.3d 944 (2009); see also Kilgore, 167 Wn.2d at 41 (holding a trial court had discretion under RAP 2.5(c)(1) to revisit an exceptional sentence on the defendant's remaining five convictions after the appellate court reversed two convictions). We review for abuse of discretion whether a trial court erred by declining to resentence a defendant. See Kilgore, 167 Wn.2d at 42.

Division Two concluded the trial court erred in calculating Ross's standard sentence range under RCW 9.94A.533(3)(g). Oeung, slip op. at 69. The statutory maximum for Ross's sentence for conspiracy was 10 years and for unlawful imprisonment was 5 years. Oeung, slip op. at 69. Yet the original sentencing court calculated his standard ranges, including the firearm enhancements, at 132.75 to 164.25 months (11 years, 1 month to 13 years, 8 months) for conspiracy and 61 to 75 months (5 years, 1 month to 6 years, 3 months) for unlawful imprisonment. When calculating a standard sentencing range with a firearm enhancement, RCW 9.94A.533(3)(g) requires the court to reduce the base sentencing range so that when the firearm enhancement is added, the total sentence does not exceed the statutory maximum. Division Two vacated Ross's sentences on these two counts and remanded to the trial court "to correct the sentencing ranges" for the conspiracy and unlawful imprisonment counts and to resentence Ross on these two counts "not to exceed the statutory maximum under RCW 9.94A.021 and .533(3)g)." Oeung, slip op. at 68–69. It also remanded for resentencing as to one of his trafficking counts. Oeung, slip op. at 69.

We cannot conclude from these instructions that resentencing on the conspiracy and unlawful imprisonment counts was purely ministerial. Because Division Two's mandate required the trial court to exercise its discretion and impose a new sentence on these two counts, it did not limit the trial court to ministerial corrections. Thus, the trial court had discretion to fully resentence as to all counts. The trial court did not recognize its discretion to do so.^[3] We thus remand for the trial court to consider Ross's request for a new sentencing hearing on all of his convictions.^[4]

B. PRP

In his PRP, Ross raises claims related to the confrontation clause the State's slides and oral assertions at trial, his special verdict forms, and cumulative error. He also argues that changes in the law of youth sentencing entitle him to resentencing. We reject these claims.

A petitioner alleging constitutional error in their PRP bears the "threshold, prima facie burden of showing by a preponderance of the evidence that [they were] actually and substantially prejudiced by the alleged error." In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315, 440 P.3d 978 (2019). The petitioner must show that the outcome of their trial "would more likely than not have been different had the alleged error not occurred." Meippen, 193 Wn.2d at 316.

1. Confrontation clause

While testifying at trial, a police officer recounted a confession made by one of Ross's co-defendants, Nolan Chouap. Ross raises various issues relating the officer's testimony, arguing that its admission violated his Sixth Amendment right to confront Chouap.^[5] The State argues that Ross has not shown actual and substantial prejudice resulting from any violation. We agree with the State.

First, Ross contends that redactions in the testimony failed to protect his identity. While testifying, the officer replaced any instance of Ross's name with a variant of "someone." For example, the officer testified: "[Chouap] said that somebody made a call and that [the guns] were all sold;" "after the incident, [Chouap] and Azariah^[6] split up and [] Azariah [was] picked up by someone else;" "[Chouap] believed Azariah [] had called somebody to come pick them up." Ross claims that it is clear, in context, that the "someone" is him. But it is not clear. "Someone" may be an unindicted co-conspirator or another one of Chouap and Ross's co-defendants.^[7]

Second, Ross points to Chouap's statement about using a.38 revolver during the burglaries. Ross claims this was the State's strongest evidence as to the firearm enhancements, and that if the officer had properly redacted his name from the confession, the jury may not have found he committed his crimes with a firearm. But Ross also made a confession that the same officer recounted at trial. In that confession, he admitted knowing that his co-conspirators were armed during their crimes. He also stated that if there was a shooting inside the homes that his co-conspirators burglarized, they planned to contact him on a "walkie-talkie." Chouap's confession was thus not the only evidence supporting Ross's firearm enhancements.

Third Ross claims that although the court instructed the...