Opinion
No. 35169-2-II.
August 21, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-04764-9, Stephanie A. Arend, J., entered July 14, 2006.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
Louis Armijo was convicted of child rape and child molestation, and originally received an exceptional sentence. We remanded his case for resentencing pursuant to Blakely, and in 2006, Armijo was resentenced to the high end of the sentencing range established at his 2002 sentencing hearing. Armijo now appeals the 2006 sentence, claiming for the first time that the sentencing range is incorrect. Because this issue could have been raised in his first appeal, and the resentencing court did not exercise independent judgment, we decline to review his argument. However, we remand to correct a clerical error in the resentencing court's judgment and sentence.
Blakely v. Washington, 542 U.S. 296; 124 S. Ct. 2531; 159 L. Ed. 2d 403 (2004).
FACTS
In January 2002, Armijo was convicted on two counts of first degree child rape (counts I and II), one count of first degree child molestation (count III), and two counts of second degree child molestation (counts IV and V). Additionally, the trial court found that Armijo had abused a position of trust as the victim's step-grandfather when he committed counts I-III and imposed a 400-month exceptional sentence. The court sentenced Armijo to 116 months on counts IV and V and ordered community custody for 36-48 months for all five counts.
Armijo appealed his conviction, arguing in part that the trial court erred in admitting testimony from his daughter. We affirmed his conviction in an unpublished opinion and mandated the case on February 14, 2005. Armijo then filed a Personal Restraint Petition (PRP) with this court, arguing that Blakely rendered his restraint unlawful because the trial court had imposed an exceptional sentence without allowing a jury to decide on the aggravating factors. The State conceded that the Blakely ruling applied to Armijo's exceptional sentence and agreed that the matter should be remanded for resentencing. We granted the petition in part and denied it in part, and we remanded to the trial court for resentencing.
Armijo was resentenced in July 2006. During the resentencing hearing, the court asked whether there was any problem with the offender score calculated for Armijo's original sentencing, and the prosecutor replied that there was not. The prosecutor then recited the standard range for each count, including 240 to 318 months on count I (first degree child rape). The State recommended the high end of the standard range given the relationship between Armijo and the victim and the frequency and duration of the incidents.
Armijo's counsel requested sentences no higher than the mid-range due to Armijo's age (he was 58 at the time of resentencing).
When the court asked whether Armijo had anything else to discuss, the following colloquy took place:
[Armijo]: You Honor, I also think there should be a downward departure from the standard range. It is due to the numerous constitutional violations that the State has so flagrantly created to my case such as the 5th, 6th and 14th which I don't need to expound upon at this time. I'm also asking for the mandatory minimum term under RCW 9.94A.540, five years. And, finally, Your Honor, I wholeheartedly know, declare, and maintain that I am completely innocent of all said charges. Thank you.
The Court: Okay. I'm a little confused about a mandatory minimum that you just said of five years. Are you disagreeing with the standard sentencing range that [the prosecutor] has outlined?
[Armijo]: I'm asking you to look at that, if you would, please.
[The State]: I have no idea what he's talking about, Your Honor.
The Court: [Defense counsel], do you know?
[Defense Counsel]: No.
The Court: . . . The only reason that the exceptional sentence was later overturned by the Court of Appeals was due to Blakely, so I don't see any reason not to impose the high end of the standard sentencing range.
Report of Proceedings (RP) (Jul. 14, 2006) at 12-14. The court then gave Armijo credit for time served — 1,632 days — and entered the judgment and sentence.
The amended judgment and sentence listed the standard range for count I (first degree child rape) as 240-318 months (using an offender score of 12). The court resentenced Armijo to the high end of that range (exactly 318 months) and again added 36-48 months of community custody on each count. The resentencing court later amended Armijo's community custody sentence to 36 months of community placement, as the crimes were committed before July 1, 2000.
ANALYSIS
I. Issue Raised on Second Appeal
Armijo's crimes were allegedly committed between 1995 and 1999, but the statutory range changed in 1996. Armijo argues that the trial court erred by imposing a 316-month sentence because no findings were made regarding the exact dates of his offense; he believes he should be sentenced under the old sentencing guidelines. The State responds that Armijo is barred from raising this claim on his second appeal, as it was an issue that could have been raised in his first appeal.
The issues a party may raise on appeal following a remand are limited by the law of the case doctrine. Where there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes reconsidering the same legal issues in a subsequent appeal. Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988). The law of the case doctrine applies not only to issues actually raised and decided on an initial appeal but also to "questions . . . which might have been determined had they been presented." Folsom, 111 Wn.2d at 263 (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965)); State v. Clark, 143 Wn.2d 731, 745, 24 P.3d 1006 (2001).
RAP 2.5(c) directs application of the law of the case doctrine, permitting an appellate court to review and determine the propriety of a trial court's decision even though a similar decision was not disputed in an earlier appeal. Such review may only take place at the request of a party to the appeal. RAP 2.5(c). However, RAP 2.5(c) does not automatically revive every issue or decision that was not raised in an earlier appeal. State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993). Although certain constitutional challenges may be raised for the first time on appeal, we may refuse to consider such a challenge raised in a second appeal. State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894 (1983).
In Sauve, the Washington Supreme Court held that a defendant could not raise even constitutional issues where they could have been raised on the first appeal: "[e]ven though an appeal raises issues of constitutional import, at some point the appellate process must stop." Sauve, 100 Wn.2d at 87. The court later stated that an issue becomes an appealable question "only if the trial court, on remand, exercised its independent judgment and reviewed and ruled again." Barberio, 121 Wn.2d at 50. In Barberio, the defendant's first appeal resulted in the reversal of one of his convictions. Barberio, 121 Wn.2d at 49. At his resentencing, the defendant challenged several aggravating factors the trial court had examined to determine his first exceptional sentence, though he had not challenged the factors or the exceptional sentence before. Barberio, 121 Wn.2d at 49. In response, the trial court made "only corrective changes in the amended judgment and sentence" and imposed the same exceptional sentence. Barberio, 121 Wn.2d at 51. Specifically, the trial court stated that it would not revisit the issue of the sentence on the remaining conviction. Barberio, 121 Wn.2d at 51. The Washington Supreme Court, on review, held that the trial court had not exercised its independent judgment and affirmed the sentence. Barberio, 121 Wn.2d at 51-52.
Similarly, here, the record illustrates that the resentencing court did not exercise independent judgment. The court stated, "All I know is he's to be sentenced within the standard range" and asked whether there was any problem with the offender score determined at the time of his original sentence. RP (Jul. 14, 2006) at 7. The prosecutor replied that there was no problem and stated the standard range for count I (first degree child rape) as 240-318 months. Armijo did not object; indeed, his lawyer agreed that the applicable range was 240-318 months. The court then examined our decision on Armijo's PRP and "[saw no] reason not to impose the high end of the standard sentencing range." RP (Jul. 14, 2006) at 13-14.
The resentencing court did not exercise its independent judgment in resentencing Armijo, and the issue of which sentencing range was proper could easily have been raised in his first appeal. Therefore, the issue is not appealable at this late stage. This case confirms the importance of denying review at late stages: "Instead of a timely and orderly proceeding to determine the matter on the merits, [the court has] had to deal with a procedural morass, all of which could have been avoided had the matter bee raised when it should have been in the first appeal." Barberio, 121 Wn.2d at 52. This issue was obvious at the time of the first appeal, and, "in the interest of judicial economy," it should have been raised at that time. Barberio, 121 Wn.2d at 52.
Even though Armijo stipulated to his standard range at both his 2002 and 2006 sentencing, he would have been permitted to raise the issue for the first time on appeal under Ford State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999) (illegal or erroneous sentences may be challenged for the first time on appeal); see also State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997) (improperly calculated standard range is legal error subject to review).
Armijo replies that this issue is properly before the court because he "requested the sentencing court review his standard range sentence calculation, . . . the issue involves manifest error affecting a constitutional right, and the issue involves the court's sentencing authority." Appellant's Reply Br. at 2. According to Armijo, the resentencing order vacated the original sentence, so the resentencing court had a "statutory mandate" to properly calculate his offender score. Appellant's Reply Br. at 3-4.
However, Armijo did not "specifically request [that] the court closely examine and correctly calculate his standard range sentence." Appellant's Reply Br. at 4. In actuality, Armijo asked for the "mandatory minimum term under RCW 9.94A.540, five years," and asked the court to "look at that." RP (Jul. 14, 2006) at 13. RCW 9.94A.540(c) states, "An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than five years." Armijo was not convicted of rape, but child rape. This statute does not apply.
Armijo's arguments that we should review his standard sentencing range calculation similarly fail. He is simply not challenging any of the resentencing court's decisions — the resentencing court merely used the same standard range as the trial court. The court did not examine the issue, nor did Armijo properly request it to do so. This standard range issue could have been raised on Armijo's first appeal, and as such we decline to review it now.
The proper avenue for review of this claim is a PRP. See Sauve, 100 Wn.2d at 87. Although Armijo has already filed one PRP, the failure to raise an issue in the first petition does not automatically bar a defendant from raising that issue in a subsequent petition. In re the Pers. Restraint of Taylor, 105 Wn.2d 683, 687, 717 P.2d 755 (1986).
II. Clerical Error
Finally, the State urges us to remand this case to the trial court solely to correct a clerical error in the 2006 judgment and sentence. Armijo did not address this request in his reply brief.
The 2006 judgment incorrectly states the dates of Armijo's crimes as follows: (1) between September 29, 1995 and September 29, 1999 for counts I, IV, and V, and (2) between September 29, 1995 and September 29, 1995 for counts II and III. All of these counts should have a date of September 29, 1995 through September 29, 1999. A court may correct a clerical error in a judgment and sentence at any time. CrR 7.8(a). We therefore remand for correction to change each of the five counts to the same date range: September 29, 1995 through September 29, 1999.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J., ARMSTRONG, J., concur.