State v. Toney

205 P.3d 944

149 Wn. App. 787

STATE of Washington, Respondent, v. Leon G. TONEY, Appellant.

No. 36442-5-II.

Court of Appeals of Washington, Division 2.

April 21, 2009.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Appellant.

Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.

ARMSTRONG, J.

¶ 1 Leon Glennquaree Toney appeals his sentences for first degree assault, first degree burglary, first degree unlawful possession of a firearm, and two firearm enhancements. In a previous appeal, we affirmed Toney's convictions but remanded for resentencing. Toney now argues that he is entitled to a second appeal because the trial court conducted a full sentencing hearing on remand and erred by imposing (1) a sentence above the statutory maximum and (2) firearm enhancements that constitute double jeopardy without a valid procedure to do so. We agree with Toney that he can appeal, but finding no error, we affirm.

FACTS

¶ 2 On August 28, 1997, the trial court sentenced Toney to 336 months' imprisonment for an incident that occurred on or about December 20, 1996.¹ The sentence included 75 months for first degree burglary, 216 months for first degree assault, and 48 months for first degree unlawful possession of a firearm. The court added two consecutive 60-month firearm enhancements and ordered community placement.

¶ 3 Toney appealed, arguing that former RCW 9.94A.310 (1996) does not mandate firearm enhancements to run consecutively. State v. Toney, 95 Wash.App. 1031, 1999 WL 294615 at *1 (Wash.Ct.App. May 7, 1999). We agreed and remanded for resentencing under "proceedings consistent with this opinion." Toney, 1999 WL 294615 at *6.

¶ 4 The trial court held a resentencing hearing on September 29, 2000. Toney informed the State on the morning of the hearing that he was going to raise other sentencing issues, and the State had no authority to offer the court as to why it could not hear other issues. At the hearing, the State asked the court to impose the high end of the standard range. But it conceded that "there's no way we can contest the fact that the defendant's sentence enhancements should run concurrent with each other...." Report of Proceedings (RP) (Sept. 29, 2000) at 4-5. Toney's counsel then urged the court to "reconsider the imposition of a standard range sentence...." RP (Sept. 29, 2000) at 6. The court responded, "I don't think you have to argue that. I've sort of approached this as if that's what we were doing all along." RP (Sept. 29, 2000) at 6. Counsel went on to say that "we're pretty much going to do a resentencing," and told the court that Toney wanted a sentence at the low end of the standard range. RP (Sept. 29, 2000) at 6. The prosecution did not respond. The court balanced many factors² before imposing a high-end standard-range sentence for the charges, and it entered a new judgment and sentence. The State recognized that the hearing was a resentencing proceeding.

¶ 5 The trial court ordered a total of 276 months' incarceration and up to two years of community placement. Toney appeals this sentence.

ANALYSIS

I. Issue Raised for First time on Appeal

¶ 6 Initially, the State asserts that under State v. Kilgore, 141 Wash.App. 817, 172 P.3d 373 (2007), review granted, 164 Wash.2d 1001, 190 P.3d 55 (2008), Toney cannot challenge his new sentences because the court imposed them following our ministerial remand. Toney counters that he can argue issues he did not raise on his first appeal because on remand the trial court conducted a full resentencing hearing, not simply a ministerial correction of his sentence; and, according to Toney, the legal basis for his constitutional claims was not established at the time of his first appeal.

¶ 7 In Kilgore, we had reversed two out of seven of Kilgore's convictions and remanded "for further proceedings." Kilgore, 141 Wash.App. at 820-21, 172 P.3d 373. On remand, the State did not retry Kilgore on the two reversed counts; it merely ordered him to pay appellate costs. Kilgore, 141 Wash. App. at 821, 172 P.3d 373. Two years after the hearing on remand, the trial court corrected the sentence by reducing Kilgore's offender score and striking the two reversed convictions but declined to reassess Kilgore's exceptional sentences under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Kilgore, 141 Wash. App. at 822, 172 P.3d 373. The State moved to dismiss Kilgore's second appeal, arguing that he should have challenged his sentences in his first appeal and that there was no resentencing on remand for Kilgore to appeal. Kilgore, 141 Wash.App. at 827, 172 P.3d 373. We found that the remand was "ministerial" because the trial court merely corrected the original judgment, left the convictions intact, and chose not to exercise its discretion to resentence the defendant. Kilgore, 141 Wash.App. at 829, 172 P.3d 373. Because there was no resentencing on remand, the defendant lost his right to appeal the sentences he chose not to challenge in his first appeal. Kilgore, 141 Wash.App. at 829-30, 172 P.3d 373.

¶ 8 We revisited Kilgore in State v. McNeal, 142 Wash.App. 777, 175 P.3d 1139 (2008), where we permitted the defendant to appeal after the court had vacated his original sentence. McNeal, 142 Wash.App. at 787 n. 13, 175 P.3d 1139. We recognized that a conviction is final when both the conviction and the sentence are final. McNeal, 142 Wash.App. at 786, 175 P.3d 1139 (citing In re Pers. Restraint of Skylstad, 160 Wash.2d 944, 949-50, 162 P.3d 413 (2007)). We explained that the sentence was not final because "the resentencing on remand was an entirely new sentencing proceeding" and noted that had this court merely remanded for amendment of the judgment, the analysis would be different. McNeal, 142 Wash.App. at 787 n. 13, 175 P.3d 1139.

¶ 9 Thus, under Kilgore and McNeal, the defendant may raise sentencing issues on a second appeal if, on the first appeal, the appellate court vacates the original sentence or remands for an entirely new sentencing proceeding, but not when the appellate court remands for the trial court to enter only a ministerial correction of the original sentence. Here, Toney's sentence was not final because our remand did not limit the trial court to making a ministerial correction. Rather, we unequivocally "remand[ed] for resentencing." Toney, 1999 WL 294615 at * 1.

¶ 10 Moreover, the trial court exercised its discretion by conducting a full, adversarial resentencing proceeding, giving both sides the opportunity to be heard. At the remand hearing, Toney's counsel urged the court to "reconsider the imposition of a standard range sentence...." RP (Sept. 29, 2000) at 6. The court responded, "I don't think you have to argue that. I've sort of approached this as if that's what we were doing all along." RP (Sept. 29, 2000) at 6. Counsel went on to say that "we're pretty much going to do a resentencing" and told the court that Toney wished to ask for a sentence at the low end of the standard range. RP (Sept. 29, 2000) at 6. The prosecution did not respond to that request. After balancing the appropriate factors, the court imposed a sentence at the high end of the standard range for the burglary and weapons charges, ran the two enhancements consecutively to the underlying offenses but concurrently to each other, and entered a new judgment and sentence. Unlike the trial court in Kilgore, the trial court here did not simply amend a judgment; rather, like the trial court in McNeal, it exercised the authority we gave it and completely resentenced Toney by reducing his sentence from 336 months to 276 months after finding that the firearm enhancements should run concurrently.

¶ 11 We conclude that Kilgore does not bar Toney from appealing his resentencing.

II. Community Placement

¶ 12 Toney next maintains that his sentence, when combined with his community placement,³ exceeds the statutory maximum for his crimes. He asserts that under Blakely⁴ and the rule of lenity, the "statutory maximum" means the high end of the standard sentence range under the SRA.⁵ We disagree.

A. Combination of Maximum Sentence and Community Placement

¶ 13 We have a duty to correct an erroneous sentence. In re Pers. Restraint of Call, 144 Wash.2d 315, 334, 28 P.3d 709 (2001). When a court sentences a defendant to the statutory maximum, and also to community custody, the judgment and sentence should set forth the statutory maximum and ensure that the term of community custody does not exceed that maximum. State v. Vant, 145 Wash.App. 592, 605-06, 186 P.3d 1149 (2008) (citing State v. Sloan, 121 Wash. App. 220, 221, 87 P.3d 1214 (2004)). Where the judgment and sentence does not so indicate, we remand for clarification of the sentence or resentencing when the combination exceeds the statutory maximum. State v. Hibdon, 140 Wash.App. 534, 538, 166 P.3d 826 (2007).

B. RCW 9A.20.021 Defines a Crime's "Statutory Maximum"

¶ 14 The SRA provides standard range sentences based on the defendant's offender score and the seriousness of the crime. See Former RCW 9.94A.310. Under this presumptive range, Toney had an offender score of 6 and the seriousness level of 7 for the burglary, making his maximum presumptive sentence 75 months under former RCW 9.94A.310. He had an offender score of 6 and a seriousness level of 12 for the assault, making his maximum presumptive sentence 216 months under former RCW 9.94A.310. Toney was also sentenced to 60 months for the firearm enhancement.

¶ 15 Former RCW 9.94A.120(13) (1996) explicitly provides that "... a court may not impose a sentence providing for a term of ... community placement which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW." (Emphasis added.) RCW 9A.20.021(1) specifies the maximum confinement for the assault, burglary charges, and firearm possession charges "unless a different maximum sentence for a classified felony is specifically...