Opinion
No. 60999-8-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 94-1-08085-3, Charles W Mertel, J., entered December 6, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
A trial court is not required to review and reconsider its prior determinations regarding an offender score when correcting an improper sentence for a deadly weapons enhancement on remand from this court. This is particularly true, here, where this court specifically remanded for resentencing only to correct the defendant's sentence with regard to the deadly weapon enhancement. Because the sentence imposed here contains a scrivener's error regarding the length of community custody, we remand solely to correct that error, but otherwise affirm the judgment and sentence imposed.
FACTS
In 1998, Scott Freeburg was convicted of first degree felony murder, second degree assault, and first degree burglary, all with a firearm stemming from an incident that occurred in 1994. At Freeburg's sentencing hearing, the State presented proof of his prior convictions, including a 1976 robbery in King County, a 1980 federal bank robbery conviction, two federal escape convictions, and a federal assault with intent to commit murder. Freeburg was sentenced as a persistent offender. His convictions, however, were overturned on appeal and the matter remanded for a new trial.
After a new trial, Freeburg was convicted of the same offenses and again sentenced as a persistent offender. Freeburg appealed and this court affirmed those convictions in 2004, but remanded for resentencing, holding that Freeburg's federal bank robbery conviction was not comparable to a Washington conviction for second degree robbery and thus could not support his sentence as a persistent offender.
State v. Freeburg, 120 Wn. App. 192, 84 P.3d 292 (2004).
In February 2005, the trial court sentenced Freeburg for a third time without the persistent offender finding. Based on an offender score of nine, the court sentenced Freeburg to the low end of the standard range for a term of 471 months. Freeburg appealed his sentence arguing that the sentencing court erred when it included two federal convictions in calculating his offender score without proving their comparability. In an unpublished opinion, this court held that Freeburg had relieved the State of its obligation to prove comparability of federal convictions when defense counsel agreed that the court's calculation of Freeburg's standard range was correct. At the 2005 sentencing, the trial court imposed deadly weapon enhancements based on a version of the statute that did not apply to the 1994 offenses. Accordingly, we remanded for resentencing only to correct the term of the deadly weapon enhancement, reducing it from 60 to 18 months.
State v. Freeburg, noted at 134 Wn. App. 1037 (2006).
Freeburg was sentenced for a fourth time in December 2007. Freeburg appeals, alleging the trial court erred in not considering his objections to his offender score and also by imposing conflicting terms of community custody.
ANALYSIS
Offender Score
Freeburg now contends that his pro se objection to the sentence imposed required the trial court to consider anew his entire offender score. After the trial court imposed a sentence with the correct enhancement, Freeburg stated:
MR. FREEBURG: Two things with that. I agree with you 100 percent on what you just said.
THE COURT: Yeah.
MR. FREEBURG: But the good time part, not being able to earn good time, I don't know how to address that or fix that, uhm, because that's not the RCW that I should have been convicted of that allowed for any good time.
And then the second thing is, and I asked your clerk, Mr. Levin, especially, could you please when you sentence me mark that I paid my fine? Because I had all kinds of —
After this exchange, there was a long discussion between the court and Freeburg regarding his involvement in his activities while he has been in prison. After an off-the-record discussion with his attorney, the following exchange occurred:
MR. FREEBURG: No, that's not my signature. One last objection I got for the points still just to reserve for appeal. I want to object to the points calculation because we had a thing where you ruled on —
THE COURT: Oh, was that that federal —
MR. FREEBURG: Federal crime. You ruled once beforehand that it wasn't calculated, but then —
THE COURT: Yeah —
MR. FREEBURG: — then these —
THE COURT: — the federal burglary, I think it was.
MR. FREEBURG: Federal, bank robbery.
THE COURT: Bank robbery, yeah. Objection noted.
MR. FREEBURG: All right.
THE COURT: Yeah, we've been through that a few times.
MR. FREEBURG: I'm learning a lot. That's where I help people out, too, is try to go to the law library and help people understand what happened.
Counsel then prepared an order for in forma pauperis to permit Freeburg to seek review should he desire to do so. Freeburg then stated that he wished "to appeal for objections noted and the good time stuff."
On appeal, Freeburg's counsel argues that the trial court erred in refusing to consider Freeburg's pro se objection to his offender score calculation. Much of this argument relies upon a 2008 amendment to the Sentencing Reform Act of 1981, which provides in pertinent part:
On remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented.[ ]
Former RCW 9.94A.530(2) (2005) (amended by Laws of 2008, ch. 231 §§ 4).
But that amendment did not become effective until August 1, 2008. And furthermore, Freeburg does not argue that it is retroactive. Thus, it does not apply to this case.
The trial court did consider Freeburg's request but ultimately declined to revisit the matter. In so doing, the court noted that it had already addressed those concerns a few times. Further, the scope of the remand to the trial court was limited to resentencing only on the portion that dealt with the deadly weapons enhancements. This court's opinion was unambiguous and made clear by its own wording, including using the word "only" twice in our remand to the trial court. We stated, "[W]e reverse and remand for re-sentencing on the deadly weapons enhancements only. In all other respects, we affirm."
And in an earlier paragraph, "We therefore, reverse the deadly weapons enhancements and remand for re-sentencing on the enhancements only."
Moreover, it is clear that Freeburg's prior appeal from the 2005 resentencing dealt with the offender score and as such the law of the case doctrine would make the offender score binding in subsequent appeals. While the doctrine is discretionary when controlling law changes between the appellate decision and proceedings on remand, those are not the circumstances here. The trial court did not abuse its discretion in not reviewing the offender score.
State v. Worl, 129 Wn.2d 416, 425, 918 P.2d 905 (1996).
Coffel v. Clallam County, 58 Wn. App. 517, 520-21, 794 P.2d 513 (1990).
Community Custody
In 1994, the trial court was authorized to impose community placement terms of two years, or up to the period of early release, for qualifying offenses such as a serious violent offense. The current judgment and sentence imposes conflicting terms of community placement. The State concedes that for serious violent offenses committed prior to July 1, 2000, the trial court can only impose the 24 months' of community placement as set forth in paragraph 4.7(a). The conflicting checked box in paragraph 4.7(c) imposing "24 to 48 months'" of community custody is merely a scriveners error as that length of community custody applies only to crimes "committed after June 30, 2000." Accordingly, we accept the State's concession and remand for resentencing only to strike the erroneous term contained in paragraph 4.7(c).
Former RCW 9.9A.120(8)(b); State v. Barnett, 139 Wn.2d 462, 464, 465, 987 P.2d 626 (1999).
Statement of Additional Grounds
In addition to the issues raised by Freeburg's counsel on appeal, Freeburg alleges ineffective assistance of counsel, jury instruction error, and due process violations. These arguments are unsupported by adequate argument and citation to authority or are too conclusory to merit discussion. RAP 10.3(a)(5); State v. Elliott, (appellate court need not consider claims that are insufficiently argued); State v. Marintorres, (appellate court need not consider pro se arguments that are conclusory; State v. Thomas, (court will not review issues that have received only passing treatment).
114 Wn.2d 6, 15, 785 P.2d 440 (1990).
93 Wn. App. 442, 452, 969 P.2d 501 (1999).
150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)).
In conclusion, we remand for resentencing for the sole purpose of striking the incorrect community custody term found in paragraph 4.7(c) of Freeburg's judgment and sentence. In all other respects, we affirm. FOR THE COURT: