    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE
STATE OF WASHINGTON,                                                              )   No. 78209-6-I

                                         Respondent,
                                                                                  )
                v.
                                                                                  )   UNPUBLISHED OPINION
JESSE MARION WHITE,                                                               )
                                                                                  )   FILED: January21, 2020
                                         Appellant.                               )
__________________________________________________________________________________)




             VERELLEN, J.              —      In 2012, on direct review, this court rejected Jesse White’s

double jeopardy challenge to his convictions for two counts of second degree

assault and affirmed White’s two corresponding firearm enhancements and three

other convictions. The mandate included an award of costs on appeal.

             In 2017, this court granted White relief on a personal restraint petition

(PRP), reversing in part and remanding for the trial court “to vacate White’s

conviction for one count of second degree assault and the accompanying firearm

enhancement” because his conviction for two counts of second degree assault

violated double jeopardy.1

             Now, in this appeal of the 2018 proceedings on remand, he contends this

court should vacate the appellate costs imposed in the 2012 direct appeal



            1    In reWhite, I Wn. App. 2d 788, 798, 407 P.3d 1178 (2017) (White II).
No. 78209-6-112


because the State is no longer the substantially prevailing party on the issues

raised in that direct appeal. Because the State is no longer the substantially

prevailing party for purposes of RAP 14.2 and requiring an additional collateral

proceeding in the trial court would be an inefficient use of judicial resources, we

exercise our discretion to vacate the award of costs imposed in the 2012 direct

appeal.

       White challenges community custody requirements that he undergo a

substance abuse evaluation and a mental health evaluation. He also contends we

should strike a DNA2 collection fee. Because all of these requirements of White’s

2011 judgment and sentence were beyond the scope of this court’s mandate when

it remanded in 2017 and were not the subject of the trial court’s exercise of its

independent judgment on remand in 2018, they are not appealable issues.

      Therefore, we affirm in part and grant White’s motion to remit appellate

costs imposed following his 2012 direct appeal.

                                       FACTS

       In 2011, White was convicted of one count of unlawful possession of a

firearm, one count of reckless endangerment, and two counts of second degree

assault involving a firearm. The reckless endangerment and assault charges both

involved domestic violence. In addition to incarceration, White was required to

undergo a chemical dependency evaluation and a mental health evaluation as

conditions of community custody. The court also imposed a $100 DNA collection


      2   Deoxyribonucleic acid.



                                          2
No. 78209-6-U3


fee. This court affirmed his conviction and sentence on direct review.3 The State

obtained an award of costs on appeal of $12,249.38.

       In 2015, White filed a CR 7.8 motion, contending his sentence violated

double jeopardy because the two counts of assault punished him twice for the

same course of conduct. He did not contest other aspects of his sentence. The

trial court transferred the motion to this court for consideration as a personal

restraint petition. Ultimately, this court granted White’s petition and remanded for

the trial court “to vacate White’s conviction for one count of second degree assault

and the accompanying firearm enhancement.”4

       In 2018, the superior court conducted the remand hearing. The court

maintained the community custody conditions and the legal financial obligations

imposed in White’s original 2011 sentence. White appeals.

                                     ANALYSIS

       In his opening brief, White moves to vacate the appellate costs imposed

following his direct appeal.5 White appears to bring his motion under RAP 12.7(c).

       Ordinarily, an appellate judgment is final and nonreviewable when the court

issues the mandate terminating review.6 RAP 12.7(c) creates an exception to the



       ~ State v. White, noted at 170 Wn. App. 1011, 2012 WL 3568580, at *10
(White I).
      ~ White II, 1 Wn. App. 2d at 798.
       ~ White also argues the resentencing court “had discretion to strike [White’s
appellate costs] in light of the equities of this case,” but he does not provide
authority for his argument. Appellant’s Br. at 14. Thus, we decline to consider it.
       6 RAP 12.7(a), (b). There are exceptions, but they are not argued here.




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No. 78209-6-1/4


usual rules on finality by preserving an appellate court’s authority “to act on

questions of costs as provided in Title 14 and on questions of attorney fees and

expenses as provided in [RAP] 18.1” after issuing its mandate terminating review.

According to White, RAP 12.7(c) lets this court “retain[ ] the power to change its

appellate cost decision and no time-bar divests it of this authority.”7 The State fails

to present any argument or authority to the contrary. So, we assume, without

deciding, that White’s interpretation is correct.

       The core of White’s argument is that his successful PRP removed the legal

basis for this court’s imposition of appellate costs incurred in his direct appeal.

RCW 10.73.160 authorizes imposition of appellate costs, including attorney fees,

on a defendant in accordance with Title 14 of the Rules of Appellate Procedure.8

RAP 14.2 allows an award of costs to an opponent who “substantially prevails on

review.” Whether a party substantially prevailed on review goes beyond “the

bottom line of reversal or affirmance”9 and considers “the extent of relief afforded

the parties.”1° Appellate costs become part of a defendant’s judgment and

sentence.11




      7Appellant’s Br. at 15.
      8 RCW 10.73.160(1)-(3).

      ~ State v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000).
      10 Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010) (quoting
Riss v. Angel, 131 Wn.2d 612, 633-34, 934 P.2d 669 (1997)).
       ~ RCW 10.73.160(3).



                                           4
No. 78209-6-1/5


       After this court rejected White’s double jeopardy argument and affirmed his

convictions in his direct appeal,12 we awarded the State its appellate costs. The

primary issue in both White’s direct appeal and his PRP was whether his two

convictions for second degree assault violated double jeopardy.13 Interpreting

RAP 14.2 “liberally.      .   .   to promote justice,”14 the State would not have substantially

prevailed on the direct appeal without prevailing on the double jeopardy issue.

Because RAP 14.2 does not authorize an award of costs where a party does not

prevail on the primary issues and prevails on only minor issues, there is no longer

a basis to impose appellate costs against White for his direct appeal.15

       The State contends White must comply with the appellate cost remission

procedures required by RCW 10.73.160(4)16 But the State fails to explain how

this procedure precludes White from bringing a general motion directly in this court

pursuant to RAP 12.7(c) and RAP 17.1. And although RAP 17.4(d) allows a

motion to be made in a brief only when the motion “if granted, would preclude

hearing the case on the merits,” we have the discretion to address the requested




       12   White I, 2012 WL 3568580, at *1.
       13   Compare White II, 170 Wn. App. 788, with White I, 2012 WL 3568580.
       14   RAP 1.2(a).
       15 See Nolan, 141 Wn.2d at 626 (‘The prevailing party need not prevail on
his or her entire claim, but he or she must substantially prevail.”). The State does
not argue it substantially prevailed without the double jeopardy issue.
       16 The State actually argues RCW 10.01.160(4) sets the procedures White
should have followed, but RCW 10.73.160(4), which is nearly identical, governs
motions to remit appellate costs.



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No. 78209-6-1/6


relief “by an opinion” as part of this appeal.17 The interests of judicial economy

favor reaching the merits of White’s challenge to appellate costs now rather than in

yet another collateral proceeding.18 Thus, we decline the State’s procedural

objections and grant White’s motion to vacate.19

       White challenges the trial court’s maintenance of his community custody

conditions. Unlike his appellate costs, which were imposed by this court and

remain subject to this court’s authority under RAP 12.7(c), the legal financial

obligations and community custody conditions imposed by the trial court as part of

White’s 2011 judgment and sentence are not before this court either on a timely

direct appeal or pending PRP. The State contends White cannot now challenge

aspects of his 2011 sentence that were not modified on remand in 2018.

       ‘{F]inality and reviewability are intrinsically bound.   .   .   .   ‘Once an appellate

decision is final, review as a matter of right is exhausted,” and the appellate court

loses the power to change its decision.2° There are exceptions to this rule, such

as when a trial court exercises its independent judgment on remand and rules on

an unappealed issue.21 Thus, the only directly appealable issues remaining after a


       17   RAP 17.6(b).
       18See RAP 1.2(a), (c).
       19 RAP 1.2(c); see State v. Stump, 185 Wn.2d 454, 464-65, 374 P.3d 89
(2016) (even the plain language of RAP 14.2 governing the imposition of appellate
costs may be waived “in order to serve the ends of justice”).
       20 State v. Kilciore, 167 Wn.2d 28, 36-38, 216 P.3d 393 (2009) (quoting

State v. Hanson, 151 Wn.2d 783, 790, 91 P.3d 888 (2004)) (citing RAP 12.7(a),
(b)).
       21 State v. Parmelee, 172 Wn. App. 899, 905, 292 P.3d 799 (2013).




                                            6
No. 78209-6-1/7


mandate issues from the appellate court are those on which the trial court

exercises its independent judgment on remand            22


       As noted above, this court narrowly “remand[ed] to the trial court to vacate

White’s conviction for one count of second degree assault and the accompanying

firearm enhancement.”23 The superior court did not entertain a broader

consideration of all issues presented on the initial sentencing. The court decided

to “maintain” much of White’s original sentence from 2011 and “readdress the

sentence to conform it to the Court of Appeals mandate.”24 White was required to

undergo both chemical dependency and mental health evaluations “as previously

ordered    .   .   .   since those issues were not appealed.”25 Because the community

custody conditions were beyond the mandate on remand and the resentencing

court did not exercise its discretion regarding community custody conditions, there

is no appealable issue for us to consider.

      Similarly, the DNA collection fee is not properly before this court on direct

appeal. The 2011 judgment and sentence required payment of the DNA collection

fee.26 White did not challenge that fee in his PRP, and it was not within the scope



      22  See Kilgore, 167 Wn.2d at 37 (“Therefore, a case has no remaining
appealable issues where an appellate court issues a mandate reversing one or
more counts and affirming the remaining count, and where the trial court exercises
no discretion on remand as to the remaining final count.”).
       23 White II, I Wn. App. 2d at 798.

      24       Report of Proceedings (RP) (Mar. 14, 2018) at 6, 11.
      2~ Id. at 13.
      26 RP (Jan. 6,2011) at 38.




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No. 78209-6-1/8


of this court’s mandate when we granted White’s PRP.27 The resentencing court

did not exercise its discretion by merely maintaining the fee on remand. Although

the trial court noted White’s DNA was collected in 2011 at the time of his original

sentencing, maintaining the fee merely reflected an aspect of White’s sentence

that was not truly before it on remand. The court did not err by maintaining the

DNA collection fee.

       For these reasons, we strike the appellate costs imposed on White’s direct

appeal, affirm the community custody conditions and DNA collection fee imposed

in the original 2011 judgment and sentence, and remand to the trial court for

ministerial corrections to White’s 2018 judgment and sentence consistent with this

opinion.




WE CONCUR:
                                                        .L.
                                                                         7




      27   White II, 1 Wn. App. 2d at 798.
