Opinion
No. 35508-6-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 98-1-04418-9, Susan Serko, J., entered September 29, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
Sidfredo Valdez appeals from a resentencing hearing following his appeal in which we vacated his judgment and sentence and remanded for resentencing. We found error in the original sentencing court's calculation of Valdez's offender score on one of his first degree kidnapping convictions. Valdez now complains that the resentencing court exceeded the scope of our remand order and mandate when it imposed a new sentence on both counts. We affirm.
State v. Valdez, noted at 133 Wn. App. 1045, 2006 WL 1829384.
FACTS
On May 12, 1999, Valdez pleaded guilty to first degree burglary (count I), two counts of first degree kidnapping (counts II and III), and first degree robbery (count IV). On November 12, 1999, the trial court sentenced him to 57 months on count I, 130 months on count II, 51 months on count III, and 77 months on count IV, based on the following offender scores: six for counts I, II, and IV; and zero for count III.
On May 6, 2005, Valdez filed a CrR 7.8 motion asking the trial court to vacate his sentence and resentence him on count III. The superior court denied the motion as untimely but on appeal from that order, we held that Valdez had shown that his judgment and sentence was facially invalid and thus we remanded for the court to sentence Valdez with an offender score of 4 rather than 6 for count II.
We explained:
Because Valdez had two convictions for serious violent felonies, namely counts II and III (first degree kidnapping), his offender score for the most serious violent felony, count II, should have been calculated using his prior and current convictions that did not qualify as serious violent offenses. RCW 9.94A.400(1) (1998). Then, his offender score for each additional serious violent felony should have been "determined by using an offender score of zero." RCW 9.94A.400(1)(b) (1998).
The trial court erred in calculating Valdez's offender score for count II by wrongly adding two points to that score based on count III. Because Valdez's sentence for the Count III serious violent felony was to run consecutively to his sentence for the count II serious violent felony, the trial court should not have considered count III in calculating Valdez's offender score for count II. RCW 9.94A.400(1)(b) (1998). As a result of this error, Valdez's offender score was wrongly calculated as six instead of four. Based on a correct offender score of four for count II, Valdez's standard sentencing range for count II should have been 72-96 months, instead of the 98-130-month range that the trial court used. RCW 9.94A.310(1) (1998), RCW 9.94A.360(9) (1998).
(Footnote omitted.) Valdez, 2006 WL 1829384, at *2.
In his original sentence, Valdez was to serve the high end of the standard range for count II and the low end of the standard range for count III and was to serve both consecutively. At the resentencing hearing on September 29, 2006, the State, as it had at the original sentencing hearing, urged the court to impose high-end sentences for both counts II and III. The court accepted this recommendation and imposed a 164-month sentence, 17 months less than the original 181-month sentence.
Analysis
I. Resentencing Authority
Valdez first argues that the resentencing court lacked authority to resentence count III as we remanded solely to correct his sentence on count II. He argues that because he did not appeal his sentence on count III and because the State never claimed error in the sentence imposed on count III, his valid sentence for this count was not subject to modification. He relies on State v. Shove, 113 Wn.2d 83, 776 P.2d 132 (1989).
Valdez also claims that the resentencing court exceeded the scope of our mandate, which provided only for correcting the offender score on count II. He relies on State v. Collicott, 118 Wn.2d 649, 827 P.2d 263 (1992); but see State v. Tili, 148 Wn.2d 350, 60 P.3d 1192 (2003) (allowing exceptional sentence on remand as sentencing court wrongly believed it did not have authority to impose an exceptional sentence).
Our decision in Valdez's appeal provided: "[W]e vacate Valdez's sentence and remand for resentencing." State v. Valdez, noted at 133 Wn. App. 1045, 2006 WL 1829384, at *2. The mandate provided: "[T]his cause is mandated to the Superior Court from which the appeal was taken for further proceedings in accordance with the attached true copy of the opinion." Clerk's Papers (CP) at 34.
The State responds that because we vacated Valdez's judgment and sentence, all of his convictions were before the sentencing court for resentencing. It argues that, even though Valdez challenged only a portion of his sentence, he was, in effect, challenging the entire sentencing plan and, thus, he had no expectation of finality in any discrete portion of that sentencing plan. It relies on State v. Larson, 56 Wn. App. 323, 328-29, 783 P.2d 1093 (1989), wherein the court explained: "Two recent holdings of the United States Supreme Court resolve any doubt that a legal sentence on a multiple count charge may be increased to effectuate the trial court's original sentencing scheme when that scheme is upset by successful legal action of the defendant." Larson, 56 Wn. App. at 329 (citing Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S. Ct. 353, 88 L. Ed. 2d 183 (1985), and Jones v. Thomas, 491 U.S. 376, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989)).
In State v. White, 123 Wn. App. 106, 97 P.3d 34 (2004), the defendant, like Valdez here, challenged only an offender score calculation; the sentencing court had before it all of White's convictions for resentencing. The court noted: "Even though the offender score problem was the sole issue considered in the prior appeal, our remand applied to the entire outcome of the combined trial." 123 Wn. App. at 112. The court then approved new sentences, which consisted of a longer felony sentence and probation time added to the misdemeanors. Id.
In Shove, the court modified an existing valid sentence. Here, we vacated the sentence. There the sentencing court sought to modify Shove's sentence without statutory authority for doing so. 113 Wn.2d at 88. Here, the court had authority to change Valdez's sentence because Valdez properly sought to modify that sentence under CrR 7.8. As we found that Valdez's judgment and sentence was invalid on its face, we vacated it. By vacating the judgment and sentence, we rendered it non-existent. The resentencing court properly considered what the first sentencing court sought to accomplish in fashioning an appropriate punishment for the criminal acts committed. We find no error.
II. Collateral Estoppel
Alternatively, Valdez argues that collateral estoppel prevents relitigation of his sentence on count III because that matter was fully resolved by the former judgment. Collicott, 118 Wn.2d at 660-61. This is particularly true here, Valdez reasons, because the original sentencing court rejected the State's request for a high-end standard range sentence and thus is estopped from again requesting such a sentence.
The State argues that collateral estoppel does not apply because we vacated Valdez's sentence. It relies again on White, where the court held that "collateral estoppel does not apply because this court's reversal and remand of the felony sentence wiped the slate clean." 123 Wn. App. at 114 (citing State v. Harrison, 148 Wn.2d 550, 561-62, 61 P.3d 1104 (2003)). We agree.
In State v. Harrison, the court explained:
On Harrison's first appeal, the court "reverse[d] Harrison's sentences and remand[ed] for resentencing with the State's recommendation of an offender score of 7." Harrison I, No. 43731-3, slip op. at 7. His entire sentence was reversed, or vacated, since "reverse" and "vacate" have the same definition and effect in this context — the finality of the judgment is destroyed. Accordingly, Harrison's prior sentence ceased to be a final judgment on the merits, and collateral estoppel does not apply. Nielson, 135 Wn.2d at 262-63.
State v. Harrison, noted at 100 Wn. App. 1049, 2000 WL 557655.
Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d 312 (1998).
Harrison, 148 Wn.2d at 561-62. Collateral estoppel does not apply here. Valdez's claim fails.
III. Vindictive Sentencing
Finally, Valdez argues that imposing a higher sentence on count III amounted to judicial vindictiveness. He reasons that there was no evidence presented at the sentencing hearing that would justify a harsher sentence. Rather, the evidence before the court was that Valdez had made positive changes in his life and wanted to apologize to his victims. See North Carolina v. Pearce, 395 U.S. 711, 722-23, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (presumption of judicial vindictiveness arises when a court imposes a longer sentence following a successful appeal); Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (sentencing court should justify an increased sentence following a successful appeal "by affirmatively identifying relevant conduct or events that occurred subsequent to the original proceeding."); Alabama v. Smith, 490 U.S. 794, 798-803, 109 S. Ct. 2001, 104 L. Ed. 2d 865 (1989) (evidence available at trial but unknown to the sentencing court at the time of original sentencing may justify longer sentence). See also State v. Hardesty, 129 Wn.2d 303, 915 P.2d 1080 (1996) (discovery of fraud in obtaining erroneous sentence justified longer sentence); White, 123 Wn. App. 106 (DOSA not appropriate because of drug use and prison infractions). But see State v. Ameline, 118 Wn. App. 128, 75 P.2d 589 (2003) (presumption of vindictiveness not rebutted when the record does not provide a justification for a longer sentence).
Two things defeat this claim. First, a different sentencing judge imposed the later sentence and thus the Pearce presumption does not apply. See State v. Parmelee, 121 Wn. App. 707, 712, 90 P.3d 1092 (2004) (there is "not a reasonable likelihood that actual vindictiveness plays a role in sentencing when a different judge imposes the more severe sentence."). Without the Pearce presumption, Valdez must show actual vindictiveness. Smith, 490 U.S. at 799-800. He fails to do so.
Second, Valdez's new aggregate sentence is shorter than that originally imposed. See State v. Franklin, 56 Wn. App. 915, 920, 786 P.2d 795 (1989) (no error in imposing exceptional sentence on remand where exceptional sentence did not exceed length of original presumptive range sentence that was reversed on appeal due to scoresheet error); see also Larson, 56 Wn. App. at 328 (after appellate court held that consecutively imposed sentences had to run concurrently, trial court decision on remand to impose longer sentence on most serious offense proper where new sentence did not exceed original aggregate sentence, particularly where the "sentence is fully explained by the trial court's original sentencing intent," and "character" of overall sentence was not altered).
IV. "Incidental" Kidnapping
In his pro se statement of additional grounds, Valdez argues that his kidnapping convictions were incidental to the robbery and thus must be dismissed because they were based on the same set of facts. He cites State v. Korum, 120 Wn. App. 686, 86 P.3d 166 (2004), rev'd in part, 157 Wn.2d 614, 141 P.3d 13 (2006).
In Korum, we dismissed several kidnapping convictions because they were merely incidental to and not independent of the robberies. 120 Wn. App. at 702-03 (discussing State v. Green, 94 Wn.2d 216, 227, 616 P.2d 628 (1980) (insufficient evidence of kidnapping because the restraint and movement of the victim was merely "incidental" to and not "an integral part of and was independent of the underlying homicide.") We held:
Accordingly, we hold as a matter of law that the kidnappings here were incidental to the robberies for the following reasons: (1) The restraints were for the sole purpose of facilitating the robberies — to prevent the victims' interference with searching their homes for money and drugs to steal; (2) forcible restraint of the victims was inherent in these armed robberies; (3) the victims were not transported away from their homes during or after the invasions to some remote spot where they were not likely to be found; (4) although some victims were left restrained in their homes when the robbers left, the duration of the restraint does not appear to have been substantially longer than that required for commission of the robberies; and (5) the restraints did not create a significant danger independent of that posed by the armed robberies themselves. See Green, 94 Wn.2d at 216, 616 P.2d 628.
(Footnotes omitted.) Korum, 120 Wn. App. at 707.
The Korum holding and the cases it relies on do not apply here because Valdez pleaded guilty. Those cases address the sufficiency of the evidence and hold, essentially, that there was no separate, independent evidence of the kidnappings as they were incidental to the robberies. By pleading guilty, Valdez waived any such challenge to the sufficiency of the evidence because "[a] plea of guilty, voluntarily made, waives the right to trial and all defenses other than that the complaint, information, or indictment charges no offense." Garrison v. Rhay, 75 Wn.2d 98, 101, 499 P.2d 92 (1968); State v. Carrier, 36 Wn. App. 755, 757, 677 P.2d 768 (1984); Pers. Restraint of Teems, 28 Wn. App. 631, 632, 626 P.2d 13 (1981). See also State v. Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005) (first degree kidnapping, even when incidental to a first degree robbery, does not merge with the robbery conviction).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J., and BRIDGEWATER, J., concur.