Opinion
No. 64297-9-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 94-1-08085-3, Richard D. Eadie, J., entered September 23, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Schindler, JJ.
On remand, the resentencing court complied with this court's order to correct a clerical error in appellant Scott Freeburg's judgment and sentence. Freeburg appeals, arguing the sentencing court abused its discretion and violated his right to effective counsel by not granting a continuance for him to confer with his appointed attorney before the resentencing hearing. The constitutional right to effective counsel is implicated only at a critical stage of proceedings where prejudice to the defendant could result due to the absence of counsel. Because of the limited scope of the remand order, the resentencing hearing was not a critical stage and there was no abuse of discretion. We affirm.
Freeburg was convicted of murder, burglary, and assault in 1998. This court overturned his convictions. He was subsequently reconvicted of the same crimes in 2002. The trial court sentenced Freeburg to life without parole as a persistent offender. On appeal, after affirming his convictions, this court reversed his sentence. Freeburg was resentenced within his standard range to 471 months, but on appeal, this court remanded for resentencing on Freeburg's deadly weapon enhancements. Freeburg was then resentenced to 411 months. He appealed and this court affirmed, except for an error in the community custody term. The trial court had checked a box for a community custody term of 24 to 48 months. A previous paragraph imposed a 24 month community custody term. The State conceded the longer term (24 to 48 months) had been indicated by mistake. We therefore remanded to the superior court "for resentencing for the sole purpose of striking the incorrect community custody term . . . of Freeburg's judgment and sentence." State v. Freeburg, noted at 147 Wn. App. 1036, 2008 WL 4967995, at *3, review denied, 166 Wn.2d 1015 (2009).
State v. Freeburg, 105 Wn. App. 492, 20 P.3d 984 (2001).
State v. Freeburg, 120 Wn. App. 192, 84 P.3d 292, review denied, 152 Wn.2d 1022 (2004) (federal and Washington robbery statutes were not comparable for determining persistent offender status).
State v. Freeburg, noted at 134 Wn. App. 1037, 2006 WL 2338175 (2006), review denied, 161 Wn.2d 1009 (2007).
Counsel was appointed to represent Freeburg at resentencing. At the hearing, counsel informed the court that he had not been able to meet or confer with Freeburg, due to Freeburg's conditions of confinement. Freeburg requested a delay or continuance of the hearing to discuss with counsel several issues concerning his judgment and sentence. The court allowed Freeburg to speak and to describe his issues for the record. Freeburg told the court his offender score should be seven instead of nine due to "out-of-state convictions"; community custody could not run consecutive to a fully served sentence; and his trial was made unfair by submission of firearm enhancements that did not exist when his offense was committed.
Report of Proceedings (Sept. 23, 2009) at 6-7.
The court concluded that the remand order permitted no action to be taken other than correcting the community custody term. Freeburg acknowledged that he had no objection to the court making that correction, but said he thought the Court of Appeals was wrong to limit the trial court's discretion. The judge explained he could not overrule the appellate court's order and concluded there would be no point in delaying the hearing to allow Freeburg to consult with counsel about his other concerns.
Freeburg assigns error to the denial of his request for a continuance, claiming the denial violated his constitutional right to counsel. "The granting or denying of a motion for continuance rests within the sound discretion of the trial court, and the trial court's ruling will not be disturbed unless an abuse of discretion is shown." State v. Sutherland, 3 Wn. App. 20, 21, 472 P.2d 584, review denied, 78 Wn.2d 996 (1970). "'Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other right he may have.'" United States v. Cronic, 466 U.S. 648, 654, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), quoting Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956). The core purpose of the right to counsel is to assure effective assistance at trial, when the accused is confronted "'with both the intricacies of the law and the advocacy of the public prosecutor.'" Cronic, 466 U.S. at 654, quoting United States v. Ash, 413 U.S. 300, 309, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973).
Criminal defendants have the right to counsel in all critical stages of the criminal proceedings against them. U.S. Const. amends. VI XIV; Const. art. I, § 22; CrR 3.1(b)(2);Gideon v. Wainwright, 372 U.S. 335, 337, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). A critical stage "is one in which there is a possibility that a defendant is or would be prejudiced in the defense of his case." Garrison v. Rhay, 75 Wn.2d 98, 102, 449 P.2d 92 (1968). Sentencing is a critical stage. State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005).
Freeburg argues the court's denial of a continuance effectively deprived him of his right to counsel during sentencing and was therefore an abuse of discretion. He contends he was prejudiced by his lawyer's inability to prepare. According to Freeburg, the trial court had discretion to address his other issues. He cites RAP 2.5(c)(1), which our Supreme Court has interpreted as allowing a trial court "to revisit an issue on remand that was not the subject of the earlier appeal." State v. Kilgore, 167 Wn.2d 28, 38, 216 P.3d 393 (2009).
Freeburg fails to recognize that a trial court may not, on remand, exceed the scope of an appellate court order which specifically limits what a trial court may do on remand. "An appellate court may, no doubt, where the error in the trial relates to a particular issue only, which does not depend for its proper understanding or trial on other issues presented, reverse and remand the cause for trial on the particular issue erroneously tried, and on that issue alone." Godefroy v. Reilly, 140 Wash. 650, 657, 250 P. 59 (1926); Keegan v. Grant County Pub. Util. Dist. No. 2, 34 Wn. App. 274, 285, 661 P.2d 146 (1983). When the appellate court intends to limit the remand to consideration of a single issue, "it will give instructions to that effect, in unmistakable language."Godefroy, 140 Wash. at 657.
In Kilgore, the first appellate decision reversed convictions on two counts, affirmed on the five remaining counts, and remanded "for further proceedings" including the possible retrial of the two reversed convictions.Kilgore, 167 Wn.2d at 33-34. Due to the open ended remand, the trial court could have exercised discretion to reach the new sentencing issues Kilgore wanted to raise, but chose not to do so. Kilgore, 167 Wn.2d at 34, 42. Because the trial court chose not to exercise its discretion, there was no trial court decision for the appellate court to review and Kilgore's appeal was dismissed.
Freeburg contends that under Kilgore, if he had been able to consult with counsel, counsel might have been able to convince the court to exercise its discretion to correct other errors he believes still remain in his sentence. But here, unlike in Kilgore, the court no longer had discretion. After Freeburg's most recent appeal, this court remanded for "the sole purpose of striking the incorrect community custody term." The language limiting the trial court's discretion is unmistakable. That this court termed the hearing on remand a "resentencing" does not implicate RAP 2.5(c)(1) nor does it transform the hearing into a "critical stage" of proceedings. Due to the specificity of this court's order, the trial court had no discretion to consider any other issue. Because no prejudice resulted from the denial of Freeburg's request to confer with counsel, his constitutional right to counsel was not violated.
Freeburg also argues his right to counsel as guaranteed by court rule was violated by the denial of the continuance. A court rule requires that a lawyer be provided "at every stage of the proceedings, including sentencing, appeal, and post-conviction review." CrR 3.1(b)(2). An asserted violation of a court rule is governed by the harmless error test. Any error under CrR 3.1(b)(2) here was harmless due to the lack of possible prejudice. Robinson, 153 Wn.2d at 696-97.
Because no prejudice resulted to Freeburg from his lack of opportunity to confer with counsel, the trial court did not abuse its discretion in denying his request for a continuance.
Freeburg has filed a statement of additional grounds under RAP 10.10. He alleges error with respect to weapons enhancements added to his sentence based on jury findings. The trial court could not and did not exercise independent discretion regarding this issue on remand. Therefore, this issue is not properly before us. RAP 2.5(c)(1).
Affirmed.
WE CONCUR: