                                                                                                                               E
                                                                                                               COURT
                                                                                                                      DIVISION II
                                                                                                             ZO15 H R 31
                                                                                                                               All 8: 37
                                                                                                                     E\   WA       GTON
                                                                                                                 VUTalk
                                                                                                                    Y
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

 STATE OF WASHINGTON,                                                           No. 45730 -0 -1I


                                       Respondent,


          v.

                                                                         UNPUBLISHED OPINION
TERRY L. JACOB,


                                       Appellant.




         MAxA, P. J. —    Terry Jacob appeals the sentencing court' s denial of his request for

substitute counsel on resentencing, as well as his sentence for driving under the influence (DUI)

and driving with a suspended license. He argues that the sentencing court ( 1) violated his

constitutional right to counsel by failing to inquire into the breakdown of his relationship with

his attorney, and ( 2) improperly considered a 1997 DUI conviction when calculating his offender

score. Jacob also submitted a statement of additional grounds ( SAG) in which he asserts that he

received ineffective assistance of counsel because his attorney ignored him. We hold that the

sentencing court did not err, and we do not consider Jacob' s ineffective assistance of counsel

claim. Accordingly, we affirm Jacob' s sentence.

                                                         FACTS


         In 2011, Jacob was convicted of DUI and driving with a suspended license and sentenced

to 60 months confinement. He appealed his convictions and sentence to this court. We held that

the   original   sentencing   court   had   improperly   added points   to Jacob' s   offender score   for   prior
45730 -0 -II




convictions from 1988 and 1993, and remanded for resentencing and recalculation of Jacob' s

offender score.



        At his resentencing, Jacob told the sentencing court that he needed to speak with his

attorney because they had not yet discussed the resentencing. Jacob' s attorney then informed the

sentencing court that Jacob previously had asked him about the possibility of requesting a new

attorney. However, Jacob never stated at the resentencing hearing that he had a conflict with his

counsel or requested that the sentencing court appoint new counsel. The sentencing court ruled

that Jacob' s assigned attorney was to continue representing him at resentencing.

        The sentencing court noted that under our mandate, it was not allowed to consider two

convictions from 1988 and 1993 when calculating Jacob' s offender score. Jacob also asked the

sentencing court not to consider a 1997 DUI conviction. The sentencing court did not address

the 1997 conviction, but did remove the 1988 and 1993 convictions from consideration. It then

determined that Jacob' s offender score was seven, including a point for the 1997 DUI conviction.

The court sentenced Jacob to a low -end sentence of 51 months in confinement with nine months


of community custody supervision.

         Jacob appeals his sentence.

                                            ANALYSIS


A        FAILURE TO APPOINT NEW COUNSEL


         Jacob argues that the sentencing court violated his constitutional right to counsel by

denying appointment of new counsel without inquiring into the breakdown of his relationship

with his assigned attorney. We disagree because Jacob never requested that the trial court

appoint new counsel.




                                                  2
45730 -0 -II



          We review a trial court' s refusal to appoint new counsel for an abuse of discretion. State

v.   Lindsey,    177 Wn.    App.    233, 248, 311 P. 3d 61 ( 2013), review denied, 180 Wn.2d 1022 ( 2014).


A trial court abuses its discretion where its decision is manifestly unreasonable or based upon

untenable grounds. Id. at 248 -49. A decision is based on untenable grounds if it rests on facts

unsupported in the record or was reached by applying the wrong legal standard. Id. at 249.

          Jacob correctly notes that the sentencing court made no attempt to inquire into the

breakdown of his relationship with his attorney. But the threshold question is whether. Jacob

ever requested that new counsel be appointed to represent him.


          Our cases have not yet established a standard for determining the sufficiency of a request

for new counsel. But to invoke the right of self representation,
                                                 -               a defendant must unequivocally

state a request to proceed without counsel. State v. Coley, 180 Wn.2d 543, 560, 326 P. 3d 702

 2014).    Such unequivocal requests are necessary to limit baseless constitutional challenges on

appeal.    State   v.   Imus, 37 Wn.     App.   170, 179 -80, 679 P. 2d 376 ( 1984). This rule also is


necessary "[     t] o protect defendants from making capricious waivers of counsel, and to protect

trial   courts   from    manipulative vacillations     by   defendants regarding     representation."    State v.


DeWeese, 117 Wn.2d 369, 376, 816 P. 2d 1 ( 1991).


           Similar      concerns exist   regarding   requests     for   appointment of new counsel.     Our Supreme


Court in State v. Cross assumed without deciding that requests for appointment of new counsel

should    be    analyzed    the   same as requests   for self representation.
                                                              -               156 Wn.2d 580, 607, 132 P. 3d


80 ( 2006).      As the court in Cross apparently recognized, there is a risk of capriciousness and

manipulation with requests for substitute counsel just as with requests to proceed without




                                                              3
45730 -0 -II



counsel. We adopt the assumption in Cross and hold that in order to invoke any right to change

counsel, a defendant must expressly and unequivocally request that new counsel be appointed.

        Here, Jacob never expressly requested new counsel or described any particular

disagreement with his attorney. Jacob told the court only that he needed to talk to his attorney

before proceeding with resentencing. His attorney told the sentencing court that Jacob

previously expressed a desire to have the court appoint an attorney other than a public defender

to represent him. But at the resentencing hearing neither Jacob nor his attorney requested new

counsel or described a breakdown in the attorney -client relationship. Jacob at most implied that

communication with his attorney had been inadequate by indicating that they needed to talk

before proceeding.

        Because Jacob failed to unequivocally request new counsel, we hold that the sentencing

court did not abuse its discretion in not inquiring into the attorney -client conflict in this case and

therefore did not violate Jacob' s constitutional right to counsel.

B.      OFFENDER SCORE CALCULATION


        Jacob argues that the sentencing court erred by including the 1997 DUI conviction in his

offender score. The State argues that the law of the case doctrine precludes our consideration of


this issue. We hold that Jacob is not barred by the law of the case doctrine from raising this issue

on this appeal, but that the sentencing court correctly calculated his offender score.

         1.    Law of the Case Doctrine


         The State argues that the law of the case doctrine bars Jacob from challenging the

inclusion of the 1997 DUI conviction in his offender score because he did not raise the issue in




                                                   4
45730 -0 -II



his first appeal even though the conviction was included in his offender score at the original

sentencing. We disagree.

         Under the law     of the case   doctrine, " ` questions determined on appeal, or which might


have been determined had they been presented, will not again be considered on a subsequent

appeal if there is no substantial change in the evidence at a second determination of the cause.' "

Folsom   v.    County   of Spokane, 111 Wn.2d 256, 263, 759 P. 2d 1196 ( 1988) (      quoting Adamson v.

Traylor, 66 Wn.2d 338, 339, 402 P. 2d 499 ( 1965)).

         However, the law of the case doctrine does not bar a defendant from raising issues at

resentencing that he could have raised on appeal of the original sentence, as long as the appellate

court vacates the original sentence and remands for unconstrained resentencing. See State v.

Rowland, 160 Wn.         App.   316, 331, 249 P. 3d 635 ( 2011), aff'd, 174 Wn. 2d 150 ( 2012); State v.


Toney,   149 Wn.    App.   787, 792, 205 P. 3d 944 ( 2009).      The doctrine does not apply because such

a resentencing is a new proceeding resulting in an entirely new sentence. See Toney, 149 Wn.

App. at 792.

         Jacob' s original sentence was based on an offender score calculated using the 1997

conviction. In his appeal of that sentence, Jacob challenged the use of the 1988 and 1993

convictions under       former RCW 9. 94A.525( 2)(    e)(   i) ( 2011). He could have challenged the use of


the 1997 conviction as well, but he did not. Although we based our ruling on the use of the 1988

and 1993 convictions, we unequivocally " vacate[ d] Jacob' s sentence, and remand[ ed] for

recalculation of    Jacob'   s offender score and   resentencing."   State v. Jacob, 176 Wn. App. 351,

364, 308 P. 3d 800 ( 2013).       As a result, we hold that Jacob could challenge the use of the 1997




                                                        5
45730 -0 -II



conviction at resentencing and on this second appeal, even though he did not raise the same issue

in his first appeal.


        2.     Use of the 1997 Conviction


        Jacob argues that a point for his 1997 DUI conviction should not have been included in

his offender score because ( 1) the applicable statute did not support the addition of the point, and

 2) the State failed to prove necessary underlying facts. We disagree.

        We review the calculation of a defendant' s offender score de novo. State v. Arndt, 179


Wn. App. 373, 320 P. 3d 104 ( 2014).

               a.      Statutory Interpretation

        Former RCW 9. 94A.525( 2)( e) provided:

        If the present conviction is felony driving while under the influence of intoxicating
        liquor or any drug ... prior convictions of felony driving while under the influence
        of intoxicating liquor or any drug, felony physical control of a vehicle while under
        the influence of intoxicating liquor or any drug, and serious traffic offenses shall
        be included in the       offender score   if: ( i) The prior convictions were committed
        within five years since the last date of release from confinement ( including full -
        time residential treatment) or entry of judgment and sentence; or ( ii) the prior
         convictions would       be   considered " prior offenses within   ten   years"   as defined in
        RCW 46. 61. 5055.


Jacob argues that the legislature' s use of the plural " convictions" with the conjunction " and"


instead of "or" before " serious traffic offenses" shows its intent to require points for a prior DUI

conviction only where the defendant also was convicted of other related offenses in combination.

We reject this interpretation.


         If a statute' s meaning is plain on its face, we give effect to that plain meaning as an

expression of       legislative intent. First Citizens Bank &   Trust Co. v. Harrison, 181 Wn. App. 595,




                                                        6
45730 -0 -II



602, 326 P. 3d 808,         review   denied, 337 P. 3d 326 ( 2014).   When determining a statute' s plain

meaning, we look to the language of the statute and its context, including related statutes. Id.

          Former RCW 9. 94A.525( 2)( e) plainly uses the plural " convictions" and the conjunction

 and" to establish the list of three offenses to which this provision applies, not to establish a


requirement that a defendant be convicted of all three crimes in combination. Jacob' s

interpretation is inconsistent with the rest of former RCW 9. 94A.525, which uses " convictions"

in the same manner for related provisions. Compare former RCW 9. 94A.525( 2)( c) with, e. g.,

former RCW 9. 94A. 525( 2)( e). 1 While we presume that the legislature uses the word " and" as a

conjunction in line with its ordinary meaning, the word " must sometimes be given disjunctive

force to   preserve     legislative intent."     State v. Kozey, 183 Wn. App. 692, 698, 334 P. 3d 1170

 2014),    review    denied, 342 P. 3d 327 ( 2015).      Jacob has not plausibly argued that the legislature

intended to include convictions for the listed offenses only where they occur in combination, and

we interpret the provision as creating disjunctive requirements.

                b.      State' s Failure to Prove Necessary Facts

           Jacob also argues that the State failed to prove the facts necessary to include the 1997

conviction in his offender score. We disagree.


           At sentencing, the State must prove all prior convictions by a preponderance of the

evidence.      State   v.   Hunley,   175 Wn. 2d 901, 909 -10, 287 P. 3d 584 ( 2012). To include Jacob' s


1997 DUI conviction under former RCW 9. 94A.525( 2)( e)( i), the State had to prove that the




 1 The legislature has since changed the statutory language such that this argument no longer can
be   made.     See RCW 9. 94A. 525( 2)(        e).
45730 -0 -II



crime had been committed " within five years since the last date of release from confinement .. .


or entry of judgment and sentence."

        In our opinion resolving Jacob' s first appeal, we included a list of his prior convictions.

Jacob, 176 Wn. App. at 356. That list included the date on which the judgment and sentence

was entered for the 1993 drug conviction. Jacob now argues that the State failed to prove at

resentencing the dates of his release from confinement and entry of the judgment and sentence

for that crime and therefore failed to prove that he had been convicted of the 1997 DUI within

five years of either of those dates. But our opinion established the date on which the 1993

judgment and sentence was entered, as proved at Jacob' s original sentencing. Jacob could have

offered evidence at   resentencing to   challenge   that   established   date, RCW 9. 94A. 530( 2); State v.


Jones, 182 Wn.2d 1, 338 P. 3d 278 ( 2014), but he did not do so. Even now, Jacob does not argue


that the date of entry listed in our earlier opinion was inaccurate.

        The State had no burden to reprove the established date of entry on resentencing.

Because the judgment and sentence for the drug crime was entered in 1993, five years had not

elapsed before Jacob was convicted of the 1997 DUI. We hold that the sentencing court did not

err by including a point for the 1997 DUI in Jacob' s offender score.

C.      SAG ARGUMENT


        Jacob' s SAG appears to suggest that he received ineffective assistance of counsel because

his attorney ignored him when he wanted to talk about resentencing arguments. This argument

depends upon facts outside the record and is not reviewable in a direct appeal. State v.

McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).             Therefore, we do not consider Jacob' s


argument.




                                                       8
45730 -0 -II



        We affirm Jacob' s sentence.


        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.




We concur:




                                                   9
