       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                             No. 79092-7-I

                               Appellant,         DIVISION ONE

               v.                                 UNPUBLISHED OPINION

 WILLIAM MANESS BRYAN,

                               Respondent.        FILED: March 11,2019

       CHUN, J.   —   In April 2015, the trial court sentenced William Bryan to a

base sentence of 72 months w[th two 24-month school bus zone enhancements

to run consecutively to the base count and each other. Later that year, the

Supreme Court decided State v. Conover, 183 Wn.2d 706, 355 P.3d 1093

(2015), holding that such enhancements run consecutively to the base sentence

but concurrently with each other unless the court imposes an exceptional

sentence.

       In 2017, Bryan, without a lawyer, filed a motion for the court to correct his

judgment and sentence pursuant to Conover. The trial court held a resentencing

in which it ran the enhancements concurrently, but raised Bryan’s base sentence

to 96 months such that his total sentence remained unchanged. Bryan appeals.

He claims the trial court exceeded its authority by raising his base sentence, and

he takes issue with the imposition of court costs and a DNA fee. We remand the
 No. 79092-7-1/2


judgment and sentence to strike the court costs and DNA collection fee, but

affirm the sentence in all other respects.

                                  BACKGROUND
        Between October and November 2014, Cowlitz County officers used a

confidential informant to conduct three controlled buys of methamphetamine from

Bryan. Two of the controlled buys occurred within 1 ,000 feet of a school bus

stop.

        On March 19, 2015, the State filed an amended information charging

Bryan with two counts of Delivery of a Controlled Substance with a School Bus

Stop Enhancement, one count of Delivery of a Controlled Substance, and one

count of Possession of a Controlled Substance with Intent to Deliver.

        That same day, Bryan pleaded guilty to all the charges. The State

recommended a base sentence of 72 months with two 24-month enhancements

for a total of 120 months. Bryan requested a drug offender sentencing

alternative (DOSA) sentence. The court requested a presentence investigation

and continued the sentencing to April 23, 2015.

        On April 23, 2015, the court followed the State’s recommendation and

sentenced Bryan to 72 months with two 24-month enhancements to run

consecutively to each other. The court additionally imposed a $100 DNA fee and

$350 in court costs.

        On August 13, 2015, the Washington Supreme Court decided Conover,

which clarified that the statute providing for the school bus stop enhancements



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(RCW 9.94A.533(6)) “requires the trial court to run [the defendant]’s bus stop

enhancements consecutively to the base sentences.       .   .   but not consecutively to

each other.” 183 Wn.2d at 719. The enhancements may run consecutively to

each other only as part of an exceptional sentence. Conover, 183 Wn.2d at 713-

14.

       A year and a half later, Bryan, acting without a lawyer, filed a Motion to

Clarify and/or Correct Judgment and Sentence on January 30, 2017. The motion

asked the court “to consider a concurrent sentence on the 2-two School Bus

Route Enhancement sentence’s [sic].” The motion further argued, “A remand for

re-sentencing is required because the sentence exceeds the Court’s statutory

authority.”

       The court held a hearing on the motion on April 10, 2017. Bryan’s counsel

stated, “Mr. Bryan through me will be requesting that your Honor simply run

these sentences concurrent for a total sentence of 96 months. I do not believe

based on the case law that I provided that this warrants an entire resentencing.”

The State contended the court needed to conduct a full resentencing. When the

court noted Bryan had requested a resentencing in his motion, Bryan’s attorney

asserted “resentencing” was a term of art that Bryan used incorrectly and

reiterated the situation did not warrant a resentencing. The court decided to

conduct a resentencing.




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           On May 8, 2017, the court held the resentencing. The court stated that it

believed a 120-month sentence remained appropriate.1 As such, the court

increased Bryan’s base sentence to 96 months and ran the two 24-month

sentence enhancements concurrently. The court continued to impose a $100

DNA fee and $350 in court costs.

           Bryan appeals.

                                                 ANALYSIS
           Bryan claims the trial court erred by resentencing him because his motion

only requested a ministerial correction of his judgment and sentence. The State

argues a resentencing was required to correct the facially invalid judgment. The

trial court did not err in its resentencing of Bryan.

           ‘A judgment and sentence is facially invalid if the trial court lacked

authority to impose the challenged sentence.” In re Snively, 180 Wn.2d 28, 32,

320 P.3d 1107 (2014). Erroneous sentences require a resentencing. Brooks v.

Rhay, 92 Wn.2d 876, 877, 602 P.2d 356 (1979).




       1   Specifically, the court told Bryan:
              So when I look at your case and I remember when it was coming through
              the first time and I look at the documents again this time around and I gave
              you a sentence that I thought was appropriate at the time based on the
              history you had. You had an offender score of nine coming into this thing.
              So you’ve had at least nine opportunities to figure out the change, to do
              something different.
                  And I don’t know how long he’s been in prison on those, but maybe this
              is what you need is [sic] some time to think about it. So the plea agreement
              was for 120 months. That’s what I intend to do. I thought it was
              appropriate, and the way I did it was the way I did it in order to get there, so
              I’m inclined to make the change for the 96 plus the 24. So that’s what I’ll do.
              So I’m not going to change the sentence essentially. It is what it is, and
              then we’ll just change the paperwork to match it.


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       In Conover, our Supreme Court decided the school bus stop enhancement

statute does not require trial courts to run enhancements on different counts

consecutively to each other. 183 Wn.2d at 708. Instead, when multiple offenses

carry such an enhancement, the court looks to RCW 9.94A.589(1)(a) to

determine how the enhancements should run. Conover, 183 Wn.2d at 708.

Under the statute, enhancements run concurrently unless the court imposes an

exceptional sentence. Conover, 183 Wn.2d at 716 n.5.

       Here, at the first sentencing, the court did not impose an exceptional

sentence. Therefore, RCW 9.94A.589(1)(a) required the court to impose the two

school bus stop enhancements concurrently. Instead it imposed the

enhancements consecutively. This error required a resentencing. A

resentencing court maintains broad discretion to resentence on all counts. State

v. Toney, 149 Wn. App. 787, 792, 205 P.3d 944 (2009)

       Bryan claims several unpublished opinions demonstrate that courts

correcting sentencing errors under Conover may correct only the imposition of

the consecutive enhancements. Bryan mischaracterizes these cases. Each of

these cases were remanded to the trial court for resentencing. See State v.

Roark, No. 46015-7-Il, slip op. at2 (Wash. Ct. App. Sept. 9,2015) (unpublished)

https://www.courts.wa.qov/orinions/pdf/D2%204601 5-7-

II%20%20Unpublished%200pinion.pdf (‘remand for resentencing with

instructions to the trial court to impose [defendant’s] multiple school zone

sentence enhancements consecutive to the base sentences for the drug and bail

jumping convictions, but concurrent to each other”); In re Pers. Restraint of Dunn,


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No. 79092-7-1/6


No. 49891-0-Il, slip op. at 3 (Wash. Ct. App. Nov. 7, 2017) (unpublished)

http :Ilwww.courts.wa .qovIo~inions/rjdfID2%204989l -0-

li%20UnpubIished%20O~inion.~df (‘remand to the trial court for resentencing as

to the school bus route stop enhancements”); and State v. Hailer, No. 75040-2-I,

slip op. at 14 (Wash. Ct. App. Jun. 27, 2016) (unpublished)

http://www.courts.wa.cjov/opinions/pdf/750402.pdf (“remand for resentencing to

correct this error”). Even in Conover, it was clear that the remand was not

merely for the correction of a ministerial error, but for “resentencing with

instructions to use RCW 9.94A.589 to determine whether the multiple 24-month

sentence enhancements run concurrently or consecutively with each other.” 183

Wn.2d at 708. Contrary to Bryan’s argument, the fact that that a court remands

for resentencing with instructions does not limit the resentencing to the mere

correction of a ministerial error. Toney, 149 Wn. App. at 792 (stating the Court

“unequivocally” remanded for resentencing when the court included instructions

with the order to resentence).

       Bryan further argues his motion restricted the court from reconsidering his

base sentence because he only asked for a correction to the enhancements.

Bryan cannot avoid resentencing and restrict the broad discretion of the court to

correct sentencing issues under Conover by limiting his motion to a correction of

a ministerial error. Even so, though he claims he intended to request only a

correction, Bryan moved for resentencing. See State v. Bebb, 108 Wn.2d 515,

524, 740 P.2d 829 (1987) (noting courts hold pro se litigants to the same




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standards as attorneys). The trial court did not err by adjusting Bryan’s base

sentence during the resentencing.

       Finally, Bryan argues the trial court erred by imposing discretionary fees,

including a $100 DNA fee and $350 in court costs. The State concedes that

because Bryan was indigent at the time of sentencing and his DNA has

previously been collection as a result of a prior felony conviction, these legal

financial obligations should be stricken. We accept the State’s concession.

       We remand to strike the courts costs and DNA collection fee from the

judgment and sentence. And we affirm the sentence in all other respects.




WE CONCUR:




              A.                                 ______
