                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      September 4, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 51342-1-II

                                Respondent,                  UNPUBLISHED OPINION

           v.

 TYLER DAVID ROBB,

                                Appellant.

          GLASGOW — In a prior appeal, we affirmed Tyler David Robb’s second degree child rape

conviction, but we vacated his second degree child molestation conviction based on double

jeopardy. On remand, the trial court vacated the second degree child molestation conviction but

did not resentence Robb. Robb now appeals his sentence following remand, arguing that the trial

court failed to recognize its authority to resentence him on his remaining second degree child

rape count. Robb also argues that he was provided ineffective assistance of counsel at the

resentencing hearing because his attorney failed to request a lower sentence on remand. We

affirm.




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                                               FACTS

       A jury found Robb guilty of second degree child rape and second degree child

molestation based on a single incident involving his 13 year old stepdaughter. At sentencing, the

trial court determined that both counts encompassed the same criminal conduct and counted as

one crime for purposes of calculating Robb’s offender score. The trial court calculated Robb’s

offender score as 0 and sentenced him to 90 months of total confinement.

       Robb appealed, and we held that his convictions for both child rape and child molestation

violated double jeopardy. We also held that the trial court erred in imposing two sentencing

conditions that were not crime related.

       We affirmed Robb’s second degree child rape conviction and ordered “remand for the

trial court to vacate Robb’s conviction for second degree child molestation and to strike the

sentencing conditions regarding controlled substances and sexually explicit material.” Clerk’s

Papers (CP) at 30. We also issued a mandate “for further proceedings in accordance with the

attached true copy of the opinion.” CP at 1.

       On remand, the State presented an order amending Robb’s felony judgment and sentence

to reflect this court’s decision. The State argued to the trial court that “the remaining count of

rape [of a] child in the second degree is the one on which the sentence now rests, but it doesn’t

change anything else about the terms or length of the sentence.” Verbatim Report of

Proceedings (VRP) at 3.




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       In response, Robb’s counsel stated: “I believe the order is consistent with the court of

appeals decision.” VRP at 3. Counsel also informed the trial court that Robb wanted to be

resentenced, but “I don’t think I have the authority to request that.” VRP at 4. The trial court

ruled that it had “nothing to do at this point,” and that the remaining count of second degree child

rape was the conviction on which the sentence rested. See VRP at 3-4.

       The trial court entered an order vacating Robb’s second degree child molestation

conviction and striking the two sentencing conditions related to controlled substances and

sexually explicit material. Robb appeals.

                                            ANALYSIS

       Robb argues that the trial court abused its discretion on remand because it failed to

recognize its discretion to resentence him on his remaining second degree child rape count. We

disagree.

       A trial court abuses its discretion if it categorically refuses to exercise its discretion or

fails to recognize its discretion. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017),

amended on recons., 2019 WL 1968363 (June 4, 2019); State v. Grayson, 154 Wn.2d 333, 342,

111 P.3d 1183 (2005). A trial court’s discretion to resentence on remand is constrained by the

scope of our court’s mandate. State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009). When

our opinion orders remand for resentencing, the resentencing court has broad discretion to

resentence the defendant on all remaining counts. State v. Toney, 149 Wn. App. 787, 792, 205

P.3d 944 (2009). However, the resentencing court does not retain the same discretion when our

court remands to the trial court with direction that leaves no room for exercise of independent




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judgment. State v. Schwab, 134 Wn. App. 635, 645, 141 P.3d 658 (2006), aff’d, 163 Wn.2d 664,

185 P.3d 1151 (2008).

       Here, our opinion specifically and narrowly instructed the trial court on remand to

“vacate Robb’s conviction for second degree child molestation and to strike the sentencing

conditions regarding controlled substances and sexually explicit material.” CP at 30. This

language does not suggest that the trial court had broad discretion to conduct an entirely new

sentencing hearing on Robb’s remaining count. And nothing in our opinion suggests that our

court intended to grant the trial court such authority on remand.

       Robb relies on Kilgore to argue that even absent an explicit remand for resentencing,

remand can be considered “open-ended” enough to allow the trial court discretion to resentence.

Br. of Appellant at 4-5; Kilgore, 167 Wn.2d 28. But Kilgore is distinguishable. In Kilgore, the

remand was “for further proceedings” without limitation because in that case, the defendant

could have been retried on two counts. Id. at 34. In this case, we remanded only to “vacate

Robb’s conviction” on one count and “to strike [certain] sentencing conditions.” CP at 4. When

our court remands for resentencing, it says so explicitly. See, e.g., Toney, 149 Wn. App. at 792.

       Accordingly, the trial court correctly interpreted its authority under our mandate and its

ruling was not an abuse of discretion.

       Robb also argues that his counsel was ineffective for failing to argue for a lower sentence

following remand. But because our court’s remand instructions did not authorize resentencing,




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Robb’s counsel was not ineffective for failing to request it.

        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 in accordance with RCW

2.06.040, it is so ordered.



                                                      Glasgow, J.
 We concur:



 Melnick, P.J.




 Sutton, J.




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