Opinion
No. 60608-5-I.
February 23, 2009.
Appeal from a judgment of the Superior Court for rung County, No. 02-1-02150-2, Michael J. Fox, J., entered April 4, 2005.
Affirmed by unpublished per curiam opinion.
Courts have both the power and the duty to correct an erroneous sentence, including an illegal sentence previously affirmed on other grounds. Because the trial court did not err in correcting the sentence, we affirm.
FACTS
Cladio Velasquez was found guilty by jury verdict of three counts of rape in the second degree — domestic violence and one count of felony harassment — domestic violence. On July 19, 2002, he was sentenced to 185 months' incarceration and 36 to 48 months' community custody. He appealed that conviction alleging, inter alia, that the community custody portion of his judgment and sentence was fatally imprecise. Velasquez had been sentenced to community custody for the period of 36 to 48 months or for the entire period of earned early release, whichever is longer. This court affirmed the judgment and sentence of the trial court on February 17, 2004. The Supreme Court denied review on November 3, 2004, and this court issued a mandate terminating review on November 19, 2004.
State v. Velasquez, noted at 120 Wn. App. 1019 (2004).
At the time of the original sentencing, Velasquez was sentenced to a determinate sentence pursuant to former RCW 9.94A.120 and WAC 437-20-010. Apparently neither counsel nor the court was aware of the then recent amendments to the Sentencing Reform Act of 1981 (SRA). RCW 9.94A.712, enacted in 2001, required the court to impose an indeterminate sentence for the crime for which Velasquez was convicted. Thus, Velasquez's first judgment and sentence was unlawful. On March 29, 2005, the prosecutor brought a motion to correct the erroneous sentence. The superior court entered an amended judgment and sentence, imposing a determinate sentence of 16 months for felony harassment and an indeterminate sentence of 185 months to life for rape pursuant to RCW 9.94A.712, to be served concurrently. Additionally, Velasquez was sentenced to a term of community custody for the statutory maximum.
Former RCW 9.94A.120 (2000) (recodified as RCW 9.94A.505 by Laws of 2001, ch. 10, § 6) required the court to impose a determinate sentence and specific term of custody. WAC 437-20-010 provided the community custody ranges for felonies committed on or after July 1, 2000.
Chapter 9.94A RCW.
Velasquez appeals, contending this court's 2004 mandate became the law of the case and the State was collaterally estopped from pursuing any modification of that sentence. He also contends that he received ineffective assistance of counsel at resentencing.
Velasquez failed to file an appeal within the 30 days from the date of his 2005 sentencing. However, this court granted him post-conviction relief to file this appeal in an unpublished per curiam decision. In re Pers. Restraint of Velasquez, noted at 136 Wn. App. 1024 (2006).
ANALYSIS
Courts have a duty and power to correct an erroneous sentence upon its discovery. A trial court is not prohibited from increasing a defendant's sentence if the original sentence was erroneous, and hence, invalid. In State v. Smissaert, the court mistakenly sentenced Smissaert to a maximum of 20 years in prison after a jury convicted him of murder. Sometime later, the Board of Prison Terms and Paroles notified the court that the statute under which Smissaert was convicted required a sentence of life imprisonment. Approximately two years after his original sentencing, the trial court entered an amended judgment, sentencing Smissaert to life imprisonment. In holding that the trial court had authority to modify the sentence, the Supreme Court observed that it had long required resentencing to correct illegal sentences:
In re Pers. Restraint of Call, 144 Wn.2d 315, 28 P.3d 709 (2001); See also In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866, 50 P.3d 618 (2002); RCW 10.73.090 (one-year time bar does not apply to judgment and sentence that is invalid in itself); McNutt v. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848 (1955) ("When a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence, when the error is discovered.") (emphasis omitted).
State v. Pascal, 108 Wn.2d 125, 132-33, 736 P.2d 1065 (1987) (citing United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980)).
103 Wn.2d 636, 694 P.2d 654 (1985).
Smissaert, 103 Wn.2d at 638.
In the past, this court has required resentencing to correct invalid sentences. See, e.g., Brooks v. Rhay, 92 Wn.2d 876, 602 P.2d 356 (1979); State v. Pringle, 83 Wn.2d 188, 517 P.2d 192 (1973); Dill v. Cranor, 39 Wn.2d 444, 235 P.2d 1006 (1951). Similarly, we have recognized the trial court's power and duty to correct an erroneous sentence. State v. Loux, 69 Wn.2d 855, 420 P.2d 693 (1966), cert. denied, 386 U.S. 997, [ 87 S. Ct. 1319,] 18 L. Ed. 2d 347 (1967); State ex rel. Sharf v. Municipal Court, 56 Wn.2d 589, 354 P.2d 692 (1960); State v. Williams, 51 Wn.2d 182, 316 P.2d 913 (1957); McNutt v. Delmore, 47 Wn.2d 563, 288 P.2d 848 (1955), cert. denied, 350 U.S. 1002, [ 76 S. Ct. 550,] 100 L. Ed. 866 (1956). In fact, sentencing provisions outside the authority of the trial court are "illegal" or "invalid." State v. Luke, 42 Wn.2d 260, 262, 254 P.2d 718 (1953), cert. denied, 345 U.S. 1000, [ 73 S. Ct. 1146, 97 L. Ed. 1406] (1953); Pringle, [ 83 Wn.2d at] 193-94.
Smissaert, 103 Wn.2d at 639.
This language indicates a sentencing court always has authority to correct an illegal sentence. And, as noted in State v. Pringle, a remand which results in a greater sentence is not "for the purpose of increasing a valid sentence, but rather . . . for the correction of an erroneous and invalid sentence." Here, the original sentence was invalid, and the trial court did not err in correcting the sentence.
Pringle, 83 Wn.2d at 194 (emphasis omitted).
Velasquez's argument that the State is collaterally estopped from moving to modify the sentence is without merit. The doctrine of collateral estoppel, or issue preclusion, applies to preclude relitigation of both issues of law and fact when such issues were conclusively determined in a prior action. Washington courts have held that collateral estoppel applies in a criminal context. Here, the issue on appeal is not identical to the issue raised previously and thus collateral estoppel does not apply.
State v. Eggleston, 164 Wn.2d 61, 187 P.3d 233 (2008); State v. Failey, 144 Wn. App. 132, 142-44, 181 P.3d 875 (2008); State v. Cabrera, 73 Wn. App. 165, 169-70, 868 P.2d 179 (1994).
State v. Harrison, 148 Wn.2d 550, 561, 61 P.3d 1104 (2003); State v. Tili, 148 Wn.2d 350, 361, 60 P.3d 1192 (2003).
Nor does the law of the case doctrine preclude the superior court from correcting an illegal sentence. This doctrine is designed to avoid relitigation of the same issues, ensure consistent results, and assure obedience of the lower courts to the appellate courts. Because the legality of the sentence was never argued, this appeal is not a relitigation of the same issue.
Harrison, 148 Wn.2d at 562.
Velasquez also contends that he was denied effective assistance of counsel because of counsel's unfamiliarity with the facts of the case and her failure to investigate the application of the SRA. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that his attorney's performance was deficient and that as a result thereof he was prejudiced. No such deficiency existed here. Defense counsel made known her concern regarding the retroactive application of the SRA. However, when informed that the issue was not retroactive application of the SRA, but rather one of mistake at the time of sentencing, counsel raised no further objection. The State produced the adult sentencing guideline for 2002. Since the change in law had already come into effect when Velasquez was sentenced, defense counsel's failure to object to the resentencing was not deficient.
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
The trial court is affirmed.
FOR THE COURT: