Opinion
67271-1-I
09-17-2012
STATE OF WASHINGTON, Respondent, v. ALLAN PARMELEE, Appellant.
UNPUBLISHED
Cox, J.
Allan Parmelee appeals his current judgment and sentence, arguing that it is unclear whether interest on the victim penalty assessment included therein runs only from the date of entry of this judgment and sentence. Interest accrued on the victim penalty assessment runs from the date of its mandatory assessment in Parmelee's original judgment and sentence in 1999. Accordingly, we affirm.
In 1999, Parmelee was found guilty of one count of stalking and three counts of violating a protection order. The trial court entered a judgment and sentence that included the mandatory $500 victim penalty assessment together with other financial obligations. Parmelee appealed, and this court affirmed his convictions for felony stalking and one of the two counts of court order violations. We remanded for resentencing.
In 2002, on remand, the trial court again imposed the mandatory $500 victim penalty assessment and other financial obligations. Parmelee appealed.In 2004, this court vacated the no-contact order provision at issue on appeal, and remanded to the sentencing court. This court affirmed the remainder of Parmelee's sentence.
State v. Parmelee, 121 Wn.App. 707, 709, 90 P.3d 1092 (2004).
Id. at 714.
Id.
In 2006, Parmelee filed a personal restraint petition, arguing that the exceptional sentence imposed by the trial court in 1999 was improper based on RCW 10.73.100(7) and Blakely v. Washington. In 2009, this court vacated Parmelee's sentence and remanded to the trial court for resentencing. We stated "[t]he sentence is vacated and the case is remanded for resentencing and such other proceedings as are consistent with this opinion."
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); State v. Parmelee, noted at 148 Wn.App. 1041, 2009 WL 377061, at *1.
Parmelee, 2009 WL 377061, at *1.
Id.
On remand, the trial court waived certain financial obligations, but, once again, imposed the mandatory $500 victim penalty assessment. The trial court denied a request for waiver of the accrued and unpaid interest on the 1999 mandatory assessment.
Parmelee appeals the 2011 judgment and sentence.
JUDGMENT AND SENTENCE
Parmelee argues that the 2011 judgment and sentence is ambiguous, and that we should remand to the trial court for clarification. We reject this argument.
Generally, a sentence, as outlined in the sentencing document, must be definite and certain. Whether the language in Parmelee's judgment and sentence as well, as the oral ruling of the sentencing court, are unambiguous is a question of law that this court reviews de novo.
Grant v. Smith, 24 Wn.2d 839, 840, 167 P.2d 123 (1946) (citing Davis v. Catron, 22 Wash. 183, 60 P. 131 (1900)).
State v. Jones, 93 Wn.App. 14, 17-18, 968 P.2d 2 (1998) (citing State v. Campbell, 125 Wn.2d 797, 800, 888 P.2d 1185 (1995)).
Here, the judgment and sentence itself does not state a date from which interest on the $500 victim penalty assessment shall accrue. But there is no requirement that it must. The interest runs from the date of entry of the judgment and sentence, as the statute dictates. Parmelee does not contend otherwise.
See State v. Claypool, 111 Wn.App. 473, 475-76, 45 P.3d 609 (2002) ("RCW 10.82.090 is unambiguous. Interest begins to accrue from the date of judgment."); RCW 10.82.090.
Rather, Parmelee bases his argument on the sentencing judge's denial of his request for waiver of previously accrued and unpaid interest on the victim penalty assessment originally imposed in 1999. The court stated in response to this request:
The next matter is the matter of the legal financial obligations.
The Court does find at this time that the defendant is otherwise indigent and will waive all non-mandatory fines, fees, and assessments previously imposed which was limited solely to the court costs of $685.
The victim penalty assessment was imposed both at the original sentencing by Judge Huggins and at the resentencing by this Court in the amount of $500. That is a mandatory assessment and may not be waived by the Court.
Report of Proceedings (June 10, 2011) at 44 (emphasis added).
The court continued, noting that it would "impose only the mandatory legal financial obligations which were in effect at the time of the original sentence. . . . So the $500 victim penalty assessment is imposed." During a colloquy with the court, Parmelee's stand-by counsel asked:
Id. at 45-46.
MR. JENSEN: Is the Court waiving interest accrual on the $500 [victim penalty assessment]?
THE COURT: The Court is not waiving anything to do with the victim penalty assessment. I've waived the previously imposed - -court costs which were imposed both at the original sentencing by Judge Huggins and then upon resentencing by this Court.Stand-by counsel reiterated his question later during the court's oral ruling:
MR. JENSEN: Your Honor, I don't want to belabor the point though, but you're - - so the answer is no you're not going to allow waiver of interest accrual on the $500 [victim penalty assessment]?
THE COURT: That's correct.
Id. at 49.
Id. at 50.
In referencing the "previously imposed" victim penalty assessment, the court indicated that it was not waiving interest accrued from that victim penalty assessment—the one initially imposed in 1999. Thus, here, the court's oral ruling made clear that it was not waiving the accrued and unpaid interest on the victim penalty assessment originally imposed in 1999. There is no ambiguity, either in the plain written terms of the current judgment and sentence or in the denial of the request to waive interest on the victim penalty assessment imposed in 1999.
Parmelee next argues that this court's vacation of his previous sentence in 2009 expunged the accrued and unpaid interest on the 1999 victim penalty assessment. We disagree.
Under former RCW 10.82.090(1) (2009), "[e]xcept as provided in subsection (2) . . ., financial obligations imposed in a judgment shall bear interest from the date of the judgment until payment, at the rate applicable to civil judgments." The word "shall" means the requirement is mandatory.
(Emphasis added.)
Claypool, 111 Wn.App. at 475-76 (citing State v. A.M., 109 Wn.App. 325, 328, 36 P.3d 552 (2001)).
Moreover, in State v. Cunningham, the supreme court made clear that penalties, assessments instituted by the court, and interest stemming from these penalties, are a condition of a defendant's criminal sentence. This reinforces our conclusion that the accrued and unpaid interest on this mandatory assessment was not affected by the last sentence of this court's prior opinion on which Parmelee focuses in this appeal.
116 Wn.App. 946, 69 P.3d 358 (2003).
Id. at 954-55.
Two cases, State v. Williams and In re Personal Restraint of Carle, illustrate the point. In both cases, the supreme court held that an error in one portion of a judgment and sentence does not require vacation of the entire judgment. It is grounds for reversing only the erroneous portion of the sentence imposed.
51 Wn.2d 182, 316 P.2d 913 (1957).
93 Wn.2d 31, 604 P.2d 1293 (1980).
Id. at 34; Williams, 51 Wn.2d at 185; see also State v. Eilts, 94 Wn.2d 489, 496, 617 P.2d 993 (1980); State v. Smissaert, 103 Wn.2d 636, 642, 694 P.2d 654 (1985) ("resentencing to correct an error does not nullify the underlying judgment").
In Williams, where the sentence imposed on the defendant was greater than the maximum prescribed by statute, the appellate court "vacated the judgment for the purpose of correcting the sentence, and ordered the defendant returned for resentencing." On remand, Washington moved to change his plea from guilty to not guilty, but the trial court denied his motion. On appeal, Washington argued that "the court should have exercised its discretion in granting or denying this motion, and that it failed to do so." The court rejected this argument, holding that Washington's plea was not opened by the prior decision:
Williams, 51 Wn.2d at 184.
Id.
Id. at 185.
It is true that the judgment had been vacated for the purpose of correcting the sentence, but it was vacated for this purpose alone. When a sentence has been imposed for which there is no statutory authority, the trial court has the power and duty to correct the erroneous sentence when the error is discovered. The opening of a judgment for this limited purpose, however, does not render it a nullity, as the defendant seems to suppose.
Id. (citing McNutt v. Delmore, 47 Wn.2d 563, 288 P.2d 848 (1955), overruled on other grounds by State v. Simpson, 82 Wn.2d 663, 513 P.2d 60 (1973)) (emphasis added).
Likewise, in Carle, the defendant challenged the sentence enhancement imposed following his conviction for first degree robbery. The supreme court held that Carle's enhanced sentence was improper. But it went on to hold that:
Carle, 93 Wn.2d at 32.
Id.
[p]etitioner's entire sentence is not erroneous, however. Our holding does not affect the finality of that portion of the judgment and sentence that was correct and valid at the time it was pronounced. We declare only that the trial court must correct the erroneous portion of petitioner's sentence by properly resentencing him without regard for RCW 9.41.025 and its attendant consequences.
Id. at 34 (citing McNutt, 47 Wn.2d at 565) (emphasis added).
Here, as in Carle, this court's 2009 opinion dealt with Parmelee's exceptional sentence, imposed in his 2004 judgment and sentence. There is nothing in that opinion that calls into question the validity of either the original victim penalty assessment or interest thereon. This court cited only to State v. Recuenco and In re Personal Restraint of Hall, both of which address the application of the harmless error standard to the failure to submit sentence enhancements to the jury. Nowhere in its opinion in 2009 did this court address legal financial obligations, or, for that matter, any other topic aside from sentencing.
163 Wn.2d 428, 180 P.3d 1276 (2008).
163 Wn.2d 346, 181 P.3d 799 (2008).
Recuenco, 163 Wn.2d at 441; Hall, 163 Wn.2d at 355.
We also note that Parmelee's briefing for the 2009 case contested only the lower court's imposition of an exceptional sentence. The victim penalty assessment and interest on that assessment was not an issue that he raised.
It is true that, unlike in Carle, this court "vacated" the prior judgment and sentence and remanded for resentencing. But, as the supreme court held in Williams, this language does not change the underlying intent of the appellate court. In 2009, the only issue before this court was the exceptional sentence imposed in 2004. Thus, here, as in Williams, the opening of a judgment for the limited purpose of sentence correction does not "render [the rest of the judgment] a nullity . . . ."
Parmelee, 2009 WL 377061, at *1.
Williams, 51 Wn.2d at 185.
Id.
Parmelee argues that his case is distinct from Carle, because this court "vacated" Parmelee's sentence in its final order, instead of using very precise language about the changes that should and should not be made on remand. Parmelee points to language in a footnote from State v. Amos, which states that "[r]emand to correct a scrivener's error does not result in a new final judgment and sentence. . . . But remand for resentencing renders the prior judgment and sentence void and results in a new final judgment, which is appealable as a matter of right." But this statement addresses when a defendant can appeal from a judgment and when he must file a collateral attack on that judgment. Further, it is contradicted by the supreme court's clear holding in Williams. Thus, Parmelee's reliance on this footnote in Amos is unpersuasive. We are bound by the supreme court decision.
147 Wn.App. 217, 195 P.3d 564 (2008), overruled on other grounds by State v. Martin, 149 Wn.App. 689, 205 P.3d 931 (2009).
Id. at 224 n.1 (internal citations omitted).
Id.
Parmelee also relies on In re Personal Restraint of Skylstad. That case is unhelpful.
160 Wn.2d 944, 162 P.3d 413 (2007).
The Skylstad court considered when a criminal defendant was precluded from direct appeal and required to file a collateral attack. It held that a judgment is not final, and the time for an appeal does not begin to run, until the sentence is final. That holding does nothing to undermine the law that an appellate court may vacate a sentence in one area, leaving unchanged the remaining segments of a sentence. Therefore, Parmelee's reliance on Skylstad is unhelpful.
Id. at 945-46.
Id. at 951, 954.
Parmelee also relies on State v. Harrison. There, the State breached its plea agreement with the defendant. Upon resentencing, Harrison argued against the imposition of an exceptional sentence. But the issue there was not whether a prior decision by the court was valid, but whether it could be considered and changed, or if it had become the "law of the case." The court did note that collateral estoppel did not preclude relitigation of the exceptional sentence because "the original sentence no longer exists as a final judgment on the merits." But this statement was made in the context of collateral estoppel. It does not contradict the court's holdings in Carle and Williams. When an appellate court vacates a sentence and remands for resentencing, portions of the original judgment and sentence not affected by the appellate court's actions remain undisturbed. Thus, Parmelee's reliance on Harrison is unhelpful.
148 Wn.2d 550, 61 P.3d 1104 (2003).
Id. at 554-55.
Id.
Id. at 559, 561.
Id. at 561.
Carle, 93 Wn.2d at 32; Williams, 51 Wn.2d at 185.
In his Reply Brief, Parmelee relies on State v. Kilgore for the principal that remand for resentencing and remand for correction of the judgment and sentence are two different things. He contends that this court vacated the entire sentence. But, as noted above, remanding for resentencing does not obviate the entirety of an older judgment and sentence. As the Kilgore court stated: "'the finality of that portion of the judgment and sentence that was correct and valid at the time it was pronounced' is unaffected by the reversal of one or more counts." Thus, Parmelee's reliance on Kilgore is mistaken.
167 Wn.2d 28, 216 P.3d 393 (2009).
Williams, 51 Wn.2d at 185; Carle, 93 Wn.2d at 34.
Kilgore, 167 Wn.2d at 37 (quoting Carle, 93 Wn.2d at 34).
Parmelee also submitted a Statement of Additional Authority, where he directs this court to RCW 4.56.110(4) and several civil cases. None of these authorities are helpful.
RCW 4.56.110(4) provides that "in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered." This language neither contradicts nor adds to the analysis we have outlined above regarding the obviation of one portion of a sentence and maintenance of others.
In the two civil cases to which Parmelee cites, the defendants' original judgments were reversed. In a civil case, the reversal of the judgment does alter any associated fees. But, in a criminal case like Parmelee's, as we have noted, portions of the original judgment associated with the undisturbed sentence remain even if other aspects of the judgment are vacated on appeal. This was the case here.
Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 373-74, 798 P.2d 799 (1990); Coulter v. Asten Group, Inc., 155 Wn.App. 1, 14-16, 230 P.3d 169 (2010).
STATEMENT OF ADDITIONAL GROUNDS
Parmelee raises two additional issues in his statement of additional grounds for review. Neither is supported by the record before us.
He first argues that the court erred in its offender score calculation when it counted his "Washington State domestic case" as one criminal history point. Because the criminal history used in sentencing was not included in the record, Parmelee has not provided the necessary information to review this contention.Thus, we do not address this argument.
RAP 9.10; State v. Wade, 138 Wn.2d 460, 465, 979 P.2d 850 (1999).
Parmelee also argues that the trial court abused its discretion when it included certain court costs and fines in his judgment and sentence, despite the fact that it found that Parmelee was indigent. Under RCW 10.01.160(3):
The court shall not order a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.
(Emphasis added.)
The court explicitly waived all fines and fees aside from the victim penalty assessment and the associated interest, which may not be waived. And, there is no reference in the record to any of the fees that Parmelee claims the trial court imposed. Thus, Parmelee has failed to show that the trial court abused its discretion.
See State v. Curry, 118 Wn.2d 911, 917-18, 829 P.2d 166 (1992).
We affirm the judgment and sentence.
WE CONCUR