Opinion
No. 60709-0-I.
December 15, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-00600-8, Steven J. Mura, J., entered July 18, 2007.
Remanded by unpublished per curiam opinion.
James Marlow appeals his convictions of first degree rape, first degree kidnapping, felony harassment, and fourth degree assault. He claims that the trial court violated his right to be free from double jeopardy by failing to vacate his convictions for kidnapping and one count of felony harassment after the court determined that they merged into the rape conviction. He further contends that the court erred by listing an offender score of two on the misdemeanor fourth degree assault conviction. Because a defendant is subject to double jeopardy when a trial court finds that multiple convictions encompass the same criminal conduct but fails to vacate the redundant convictions, we remand for the trial court to vacate the merged convictions. And because the Sentencing Reform Act of 1981, chapter 9.94A RCW, does not authorize offender score calculations for misdemeanor convictions, we remand for the trial court to correct the offender score on the fourth degree assault conviction.
FACTS
In April 2005, Marlow met Rubey Erickson, who was looking for her friend Michael De Giorgio. Marlow told Erickson that he was camping with De Giorgio, and they both went to the camp to see De Giorgio. At the camp, the three began drinking. According to Erickson, Marlow became intoxicated, dragged her into the tent, raped her, and threatened to kill her while he was raping her. While this was happening, De Giorgio ran to a convenience store, called 911, and reported the rape. Erickson testified that after Marlow was finished raping her, he told her to get dressed, grabbed her by the hair and forced her up the trail, threatening to kill her and her family. According to Erickson, Marlow threatened her because he did not want to go to jail. He also told her not to tell anyone or he would kill her and bury her in the campsite.
These facts are recited in our opinion on the first appeal, State v. Marlow, No. 57141-9-I (March 19, 2007). No verbatim report of the trial proceedings was designated for this appeal.
The State charged Marlow with first degree rape (count I), first degree kidnapping (count II), two counts of felony harassment (counts III and IV), intimidating a witness (count V), and fourth degree assault (count VI). Erickson was afraid to testify, so to ensure her appearance at trial, she was arrested and detained in jail until she testified. A jury found Marlow guilty of all counts.
At sentencing, the trial court determined that the kidnapping conviction and one of the felony harassment convictions (counts II and III) merged into the rape conviction. The judgment and sentence listed an offender score of two for each count, including the fourth degree assault conviction. The court imposed a standard range sentence of 144 months' confinement.
The judgment and sentence states: "Counts 2 3 merge into count I [first degree rape] for sentencing." No transcript of this sentencing hearing was designated as part of the appellate record.
On appeal, we reversed the conviction for intimidating a witness and remanded for resentencing. On remand, the trial court vacated the conviction for intimidating a witness, recalculated the standard range, and imposed a standard range sentence of 124 months' confinement. The judgment and sentence listed the offender score as one on each count, except on the fourth degree assault conviction, which was listed as two.
DISCUSSION
Marlow argues that the trial court's failure to vacate the kidnapping and assault convictions that merged into the rape conviction violated his constitutional right to be free from double jeopardy. He further challenges the offender score for the fourth degree assault charge, arguing that this conviction carries no offender score because it is a misdemeanor. The State contends that Marlow is procedurally barred from raising these issues because he could have raised them in his first appeal and did not do so. Alternatively, the State concedes that the judgment and sentence should be amended to reflect that no judgment was entered on the kidnapping and felony harassment charge and that the offender score on the misdemeanor assault conviction was a "ministerial error" that did not prejudice Marlow.
I. Waiver
RAP 2.5(c)(1) addresses the scope of review of a trial court decision that has already been subject to appellate review:
If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.
While "[t]his rule does not revive automatically every issue or decision which was not raised in an earlier appeal," if, on remand, the trial court exercised its independent judgment and reviewed and ruled again on the issue, it becomes an appealable question.
State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993).
Here, Marlow challenges the court's failure to vacate the convictions that the court found merged into the rape conviction. The State is correct that Marlow failed to raise this issue in the first appeal and on remand. But the trial court did revisit sentencing on remand and the double jeopardy issue raised is one of constitutional magnitude. Thus, we exercise our discretion under RAP 2.5 and review it now, particularly in light of the State's concession that the trial court committed error.
See State v. Ellis, 71 Wn. App. 400, 404, 859 P.2d 632 (1993) (reviewing double jeopardy claim based on erroneous instructions despite defendant's failure to object to instructions at trial).
II. Failure to Vacate Counts II and III
In State v. Womac, the court held that when a trial court finds that multiple convictions constitute the same criminal conduct, the proper remedy is to vacate the redundant counts. In Womac, the trial court found that three convictions constituted the same criminal conduct, determined that sentencing the defendant on all three counts would violate double jeopardy and sentenced him only on one count. But the court also found that the remaining counts were still valid convictions and entered judgment on all three convictions. The Washington State Supreme Court reversed, holding that failure to vacate such convictions violates double jeopardy principles even if the defendant is not sentenced on those convictions. As the court explained: "That Womac received only one sentence is of no matter as he still suffers the punitive consequences of his convictions."
160 Wn.2d 643, 656, 160 P.3d 40 (2007).
Id. at 654-55.
Id. at 647.
Id. at 656.
Likewise here, the trial court found that the kidnapping and felony harassment convictions merged into the rape conviction and sentenced Marlow only on the rape conviction. Accordingly, it should have vacated the other two convictions. Its failure to do so was therefore error, and we remand for the trial court to vacate those convictions.
The State essentially concedes this point by asserting that the judgment and sentence should be corrected to reflect that there is no judgment on counts II and III; vacating those counts accomplishes the same result.
III. Offender Score on the Misdemeanor Conviction
The trial court further erred, as the State concedes, by entering an offender score of two on the fourth degree assault charge. As Marlow correctly notes, the Sentencing Reform Act does not authorize offender scoring of misdemeanors. The trial court's scoring of the fourth degree assault conviction was therefore error, and we remand for the trial court to correct that score as zero.
We remand for the trial court to vacate the convictions for kidnapping and felony harassment (counts II and III), and to correct the offender score for the fourth degree assault conviction.