       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
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JOHN A. JONES, III,                              UNPUBLISHED OPINION                 \X>
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                     Respondent/                 FILED: August 12, 2013
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                     Cross-Appellant.


       Becker, J. — The issue in this appeal is whether, on a remand for

resentencing, the State may submit evidence of the defendant's criminal history

that it did not submit at the original sentencing hearing, even though a defense

objection at the original hearing put the State on notice that proof was required.

It is not for this court to decide whether legislation enacted in 2008 superseded

our Supreme Court precedent on this issue, as the State contends. The trial

court properly resentenced the appellant in this case without considering

additional evidence of criminal history.

       This is the third appeal to address the criminal history of respondent and

cross appellant John A. Jones III. The persistent issue in all three appeals has

been whether three California convictions are comparable to Washington felonies

and should therefore be included in Jones' offender score.
No. 69118-0-1/2


      Jones committed a brutal crime of domestic violence. In 2008, a jury

convicted him of second degree assault and found by special verdict that the

assault occurred in the presence of his infant son.

      At the first sentencing hearing in Snohomish County Superior Court on

September 22, 2008, the State's presentation of Jones' criminal history included

certain California convictions. Jones objected that the State's evidence was

insufficient to prove he committed the California offenses or to determine the

comparable Washington offenses. The trial court determined Jones' offender

score to be "at least 6" by including three California convictions from 1992: one

for first degree murder with a firearm and two for attempted murder with a

firearm. With an offender score of 6, the standard range for the assault was 33

to 43 months. The trial court determined that an exceptional sentence was

warranted by the jury's finding that the crime was committed in the child's

presence. The court imposed a sentence of 120 months.

      Jones appealed. This court affirmed the conviction but remanded for

resentencing because the trial court had not properly determined Jones' offender

score and had simply assumed, without conducting the necessary analysis, that

the California convictions for murder and attempted murder were comparable to

Washington felonies. State v. Jones, noted at 154 Wn. App. 1017, 2010 WL

264998, at*3. review denied, 169 Wn.2d 1009 (2010). Even when imposing an

exceptional sentence, a trial court must first correctly determine the standard

range. State v. Parker, 132 Wn.2d 182, 190, 937 P.2d 575 (1997) ("We are

hesitant to affirm an exceptional sentence where the standard range has been
No. 69118-0-1/3


incorrectly calculated because of the great likelihood that the judge relied, at

least in part, on the incorrect standard ranges in his calculus.")

       Where a defendant's objections during sentencing put the State on notice

of the deficiency of its evidence of criminal history, the State will not be allowed to

introduce new evidence of his criminal history on remand. State v. Ford. 137

Wn.2d 472, 485, 973 P.2d 452 (1999). In his first appeal, Jones invoked that

principle and argued that the objections he raised in the trial court barred the

State from introducing new evidence of his criminal history on remand. The State

responded that the evidence in the record was already sufficient to document the

California convictions and that, in any event, a 2008 statute permitted the

introduction of new evidence of criminal history, notwithstanding Ford. This court

did not decide whether the State should be allowed to introduce additional

evidence of criminal history on remand, finding the issue was not ripe for review

because it remained to be seen whether the State would actually make such a

request. Jones, 2010 WL 264998, at *3.

       At the remand hearing in December 2010, over Jones' objection, the State

introduced new evidence of criminal history. By this time, the State had

conceded the disputed California convictions were not legally comparable to

Washington offenses. The State submitted the new evidence to prove that the

three California convictions for murder and attempted murder were factually

comparable to Washington felonies. Purportedly, the new evidence included a

transcript of a plea hearing in California in which Jones participated in a colloquy

that established the factual basis for his plea of guilty to the three convictions.
No. 69118-0-1/4


The court took this evidence into consideration as well as a California drug

conviction that Jones did not dispute. With the offender score now recalculated

as 7, the resulting standard range was 43 to 57 months. The court again

imposed an exceptional sentence of 120 months.

      Jones appealed a second time and was again successful. He

demonstrated that the document submitted by the State was a probation report,

not a transcript of a plea colloquy. The probation report did not prove factual

comparability. The case was again sent back for resentencing. State v. Jones,

noted at 167 Wn. App. 1010, 2012 WL 763145, at *3.

       The present appeal arises from the resentencing that occurred at a

hearing in June 2012. This time, the State had a copy of the transcript of the

California plea colloquy, but it was not certified. The State requested a short

continuance to obtain a certified copy. The trial court denied this request and

ruled that the record previously created by the State was inadequate to prove the

California convictions were factually comparable to Washington felonies.

       Without the California convictions, Jones' criminal history consisted solely

of the undisputed prior drug conviction. The court recalculated his offender score

asl The resulting standard range for the assault was 6 to 12 months. The

court reaffirmed its determination that an exceptional sentence was warranted by

the jury's finding that Jones committed the assault in the presence of the child.

With the standard range of 6 to 12 months in mind, the court decided to impose

an exceptional sentence of 60 months. This was half as long as the exceptional

sentence of 120 months the court had imposed when the standard range was
No. 69118-0-1/5



thought to be 33 to 43 months (in 2008) and 43 to 57 months (in 2010). A few

days later, the State filed a certified copy of the plea transcript that allegedly

establishes the factual comparability of the California convictions.

       The State appeals, contending that the trial court erred by refusing to

continue the sentencing hearing long enough to allow the State to obtain the

certified document. Jones cross appeals, arguing the exceptional sentence of 60

months was clearly excessive.

Supreme Court Cases

       At sentencing, the State bears the burden of proving a defendant's prior

criminal history and the comparability of out-of-state convictions. Ford, 137

Wn.2d at 479-80. In Ford, the Supreme Court adopted the rule that where the

State fails to carry its burden of proving criminal history after a specific objection,

itwill not be provided a further opportunity to do so. Ford, 137 Wn.2d at 485.

       The question in Ford was whether the defendant's failure to specifically

object to the classification of three prior California convictions waived the issue

on direct appeal. Ford argued the three convictions should not be counted in his

offender score because they resulted in civil commitment only. Ford, 137 Wn.2d

at 475. The State asserted the California convictions were comparable to

felonies under Washington law but did not present documentary proof to

substantiate this position. The trial court classified the convictions as comparable

to Washington felonies. As a result, Ford's offender score was 11 instead of 8.

The trial court imposed an exceptional sentence of 120 months, citing, among
No. 69118-0-1/6


other things, the aggravating factor of having an offender score of 9 or more.

Ford, 137Wn.2dat476.

      On appeal, Ford argued that the California convictions should not have

been included in his offender score because the State had not proved they were

comparable to Washington felonies. The State responded that the absence of

proof was due to Ford's failure to object. "According to the State, had Ford

objected to the State's asserted classification at sentencing and requested an

evidentiary hearing, a record would have been developed to decide the issue."

Ford, 137Wn.2dat478.

      The Supreme Court decisively rejected the State's argument that Ford had

the burden of proving the California convictions were classified wrongly. The

court held that the State has the primary burden of proving the proper

classification of out-of-state convictions. Ford, 137 Wn.2d at 480. The State

cannot meet that burden through bare assertions. "To conclude otherwise would

not only obviate the plain requirements of the [Sentencing Reform Act of 1981]

but would result in an unconstitutional shifting of the burden of proof to the

defendant." Ford, 137 Wn.2d at 482.

      A challenge to classification of out-of-state convictions, like other

sentencing errors resulting in unlawful sentences, may be raised for the first time

on appeal. Ford, 137 Wn.2d at 484-85. The court determined that Ford's

sentence was unlawful because of insufficient evidence to prove the

comparability of the California convictions. Resentencing was required. Ford,

137Wn.2dat485.
No. 69118-0-1/7


       The Ford court then addressed the issue raised in the present case: At

resentencing, should the State be allowed to present evidence of criminal history

that it did not present at the first hearing? The answer, under Ford, depends on

whether or not the defendant had raised an objection "to specifically put the court

on notice as to any apparent defects." Ford, 137 Wn.2d at 485. If the defendant

did raise a specific objection, the State does not get another chance. "In the

normal case, where the disputed issues have been fully argued to the sentencing

court, we would hold the State to the existing record, excise the unlawful portion

of the sentence, and remand for resentencing without allowing further evidence

to be adduced." Ford, 137 Wn.2d at 485. Because the objection of the

defendant in Ford was not sufficiently specific, the court ruled that the

resentencing would include an evidentiary hearing at which the State would be

allowed to introduce evidence to support the proper classification of the disputed

convictions. Ford. 137 Wn.2d at 486. The Supreme Court reiterated the "no

second chance" rule announced in Ford in a companion case decided on the

same day, State v. McCorkle, 137 Wn.2d 490, 495-97, 973 P.2d 461 (1999).

       The first case in which the Supreme Court applied the "no second chance"

rule to deny the State an opportunity to introduce new evidence at a resentencing

was State v. Lopez. 147 Wn.2d 515, 55 P.3d 609 (2002). In Lopez, the trial court

imposed a lifelong persistent offender sentence despite the defendant's objection

that the State had failed to establish the necessary predicate convictions with

satisfactory evidence. The State offered to provide that evidence at a later date.

The trial court declined and proceeded to sentence Lopez to life without parole.
No. 69118-0-1/8


The Supreme Court vacated the sentence and, following Ford and McCorkle.

refused to allow the State to prove the predicate convictions on remand. Lopez.

147 Wn.2d at 519-21. Although the State argued Lopez was a persistent

offender at the sentencing hearing, "itwas nevertheless completely unprepared

to prove his prior offenses." Lopez. 147 Wn.2d at 523.

       In a later case where the State had failed to allege or prove an out-of-state

conviction at the original sentencing hearing, the court again followed Ford and

held the State "should not be allowed the remedy of an evidentiary hearing to

correct its failure." In re Pers. Restraint of Cadwallader. 155 Wn.2d 867, 878,

123 P.3d 456 (2005).

       In the present case, Jones made a specific objection at the time of the

original sentencing. The State did not come forward with proof of the

comparability of the California convictions. If Ford. McCorkle. Lopez, and

Cadwallader control the outcome of the present case, the State does not have

the right to another opportunity to correct its failure of proof.

       The State argues, however, that the outcome of the present case is

controlled by legislation enacted in 2008 in response to Ford. McCorkle. Lopez,

and Cadwallader.

2008 Legislation

       The title of the 2008 statute is "An Act Relating to ensuring that offenders

receive accurate sentences." The first section declares the legislature's view that

Ford. McCorkle. Lopez, and Cadwallader obstruct the goal of accuracy in

sentencing:



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No. 69118-0-1/9


       It is the legislature's intent to ensure that offenders receive accurate
       sentences that are based on their actual, complete criminal history.
       Accurate sentences further the sentencing reform act's goals of:
              (1) Ensuring that the punishment for a criminal offense is
       proportionate to the seriousness of the offense and the offender's
       criminal history;
             (2) Ensuring punishment that is just; and
             (3) Ensuring that sentences are commensurate with the
       punishment imposed on others for committing similar offenses.
              Given the decisions in In re Cadwallader, 155 Wn.2d 867
       (2005): State v. Lopez. 147 Wn.2d 515 (2002): State v. Ford. 137
       Wn.2d 472 (1999); and State v. McCorkle. 137 Wn.2d 490 (1999),
       the legislature finds it is necessary to amend the provisions in RCW
       9.94A.500, 9.94A.525, and 9.94A.530 in order to ensure that
       sentences imposed accurately reflect the offender's actual,
       complete chminal history, whether imposed at sentencing or upon
       resentencing. These amendments are consistent with the United
       States supreme court holding in Monge v. California. 524 U.S. 721 [,
       118 S. Ct. 2246, 141 L. Ed. 2d 615] (1998), that double jeopardy is
       not implicated at sentencing following an appeal or collateral attack.

Laws of 2008, ch. 231, § 1 (emphasis added).

       The 2008 statute amended numerous sections of the Sentencing Reform

Act. Pertinent to this appeal, one of the sections amended was RCW 9.94A.530,

which defines the evidence a trial court may consider when determining the

standard range. The statute amended RCW 9.94A.530(2) so that it now reads

as follows:

               (2) In determining any sentence other than a sentence
       above the standard range, the trial court may rely on no more
       information than is admitted by the plea agreement, or admitted,
       acknowledged, or proved in a trial or at the time of sentencing, or
       proven pursuant to RCW 9.94A.537. Acknowledgment includes not
       objecting to information stated in the presentence reports and not
       objecting to criminal history presented at the time of sentencing.
       Where the defendant disputes material facts, the court must either
       not consider the fact or grant an evidentiary hearing on the point.
       The facts shall be deemed proved at the hearing by a
       preponderance of the evidence, except as otherwise specified in
       RCW 9.94A.537. On remand for resentencing following appeal or
       collateral attack, the parties shall have the opportunity to present
No. 69118-0-1/10


       and the court to consider all relevant evidence regarding criminal
       history, including criminal history not previously presented.

Laws of 2008, ch. 231, § 4 (emphasis on portions added in 2008).

       The State argues that the last sentence of RCW 9.94A.530(2), as

amended in 2008, means that the State must always be allowed to supplement

the record at resentencing with materials not previously considered by the court,

notwithstanding a specific objection raised by the defendant at a previous

sentencing. To the extent that Ford and its progeny give the State only one

chance to introduce evidence proving criminal history after a specific objection,

the State contends that those decisions have been superseded by the 2008

statute.

       Jones responds that the Supreme Court found the amendment to RCW

9.94A.530(2) to be unconstitutional on its face in State v. Hunlev, 175 Wn.2d

901, 912-15, 287 P.3d 584 (2012). He overstates the holding of Hunlev. The

question before the court was whether the 2008 statute was constitutionally

infirm to the extent that it permitted the State to prove criminal history with a

prosecutor's summary, and to the extent that it deemed a defendant's failure to
object to be an "acknowledgement" that would excuse the State from meeting its

burden of proof as set forth in Ford. The courtfound that these particular

amendments were an impermissible attempt to overrule Supreme Court holdings

that were rooted in principles of due process. "The legislature may change a

statutory interpretation, but itcannot modify or impair a judicial interpretation of

the constitution." Hunlev, 175 Wn.2d at 914.




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No. 69118-0-1/11



       Whether the State should get more than one chance to present evidence

of criminal history after a specific defense objection was not at issue in Hunlev.

Thus, the Hunlev court did not address the last sentence of RCW 9.94A.530(2),

which states: "On remand for resentencing following appeal or collateral attack,

the parties shall have the opportunity to present and the court to consider all

relevant evidence regarding criminal history, including criminal history not

previously presented." This is the portion of the statute the State relies on in the

present case. The State's reply brief contends that the Supreme Court has never

articulated a constitutional basis for the "no second chance" rule and therefore

the legislature was free to supersede it by a statutory enactment.

       This court is not in a position to declare that the "no second chance" rule

set forth in Ford is no longer in effect. Once the Supreme Court has decided an

issue of state law, that interpretation is binding on all lower courts until it is

overruled by the Supreme Court. State v. Gore. 101 Wn.2d 481, 487-88, 681

P.2d 227 (1984). Ford is a foundational case on sentencing procedure in

Washington. The court was concerned with preserving the integrity and dignity of

the sentencing process as a matter of due process generally. See Ford, 137

Wn.2d at 484 ("The meaning of appropriate due process at sentencing is not

ascertainable in strictly utilitarian terms'"), quoting American BarAss'n,

Standards for Criminal Justice: Sentencing std. 18-5.17, at 206 (3d ed. 1994).

Ifthe State is to have unlimited opportunities to introduce new evidence of

criminal history whenever a defendant is resentenced, the State must first




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No. 69118-0-1/12


convince the Supreme Court that it lacked a constitutional basis for establishing
the contrary rule in Ford.

       At his first sentencing for the 2008 assault conviction, Jones objected that

the State's evidence was insufficient to prove he committed the California

offenses or to determine their comparable Washington offenses. Under Ford, the

State was obliged to come forward at that time with adequate proof. The State

did not do so. Under Ford, the trial court on this most recent remand was correct

in refusing to allow the introduction of additional evidence. It was not an abuse of

discretion to deny the State's request for a continuance to supplement the record

with new evidence proving the comparability of the California convictions.

Exceptional Sentence

       In a cross appeal, Jones challenges the court's exceptional sentence of 60

months as clearly excessive. A sentence alleged to be clearly excessive is

reviewed for abuse of discretion. State v. Oxborrow. 106 Wn.2d 525, 530, 723

P.2d 1123 (1986).

       To reverse an exceptional sentence, the court must find "(a) Either that the

reasons supplied by the sentencing court are not supported by the record which

was before the judge or that those reasons do not justify a sentence outside the

standard sentence range for that offense; or (b) that the sentence imposed was

clearly excessive." RCW 9.94A.585(4). When a sentencing court does not base

the sentence on improper reasons, it will be found excessive only if its length

"'shocks the conscience of the reviewing court'" in light of the record. State v.




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No. 69118-0-1/13


Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995), quoting State v. Ross. 71

Wn. App. 556, 571, 861 P.2d 473, 883 P.2d 329 (1993).

      The exceptional sentence was based on a proper reason. The jury found

that the assault occurred in the presence of the defendant's minor child.

      In the course of imposing the sentence, the court remarked, "And, in

resentencing him with a score of 1, the range would be 6 to 12, along with what I

think is an open door given the aggravating factor." Jones objects to the court's

"open door" comment. We reject his contention that the reference to "an open

door" meant the court believed there were no constraints upon the length of the

sentence. The court's decision to reduce the exceptional sentence from 120

months to 60 months shows the court's acceptance of the responsibility not to be

excessive in sentencing. The assault itself was unusually violent. In light of the

record, the length of the sentence does not shock the conscience of this court.

We find no abuse of discretion.

      Affirmed.




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