                                                                          FILED 

                                                                       SEPT. 24,2013 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                          DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 30672-1-111
                                             )         Consolidated with
                     Respondent,             )         No. 31043-4-111
                                             )
             v.                              )
                                             )
MARQUIS JONES,                               )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )
                                             )
                                             )
In re Personal Restraint Petition of:        )
                                             )
MARQUIS JONES,                               )
                                             )
                     Petitioner.             )

       BROWN,   J. - Marquis Jones appeals his resentencing, contending his 2001

convictions and firearm sentence enhancements on two counts of attempted first

degree robbery violate double jeopardy principles. In a personal restraint petition

(PRP), Mr. Jones argues the trial court in 2000 violated erR 4.1 and deprived him of

due process by failing to arraign him on the State's amended information where he did

not receive a copy of it and lacked actual notice of its charges. Additionally, Mr. Jones

filed a statement of additional grounds for review that attaches evidence supporting his
No. 30672-1-111, consol. with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones

PRP. We conclude his appeal presents no reviewable error claim and his PRP is time

barred. Accordingly, we dismiss Mr. Jones's appeal and PRP.

                                          FACTS

       In April 2000, the State charged Mr. Jones with first degree premeditated murder.

The trial court arrajgned him on the original information. In August 2000, the State filed

amended information charging him with first degree felony murder, first degree burglary,

first degree robbery, two counts of attempted first degree robbery, and first degree

unlawful firearm possession. The amended information alleged he committed the

murder, burglary, robbery, and attempted robberies while armed with a firearm. He

claims the trial court did not arraign him on the amended information, he did not receive

a copy of it, and he lacked actual notice of its charges.

       Following a bench trial, the trial court found Mr. Jones guilty of first degree felony

murder, first degree burglary, one count of attempted first degree robbery as a lesser

included offense, two counts of attempted first degree robbery as charged, and first

degree unlawful firearm possession. The court found he committed the murder,                         1
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burglary, and attempted robberies while armed with a firearm. The court filed his                   It


judgment and sentence with the clerk on January 29,2001 and issued an order

correcting his sentence the next day. He timely appealed his convictions while the time
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for appealing his sentences passed. We affirmed his convictions and our Supreme
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Court denied review. State v. Jones, No. 19909-6-111,2002 WL 982618, at *1 (Wash.                   I
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Ct. App. May 14,2002), noted at 111 Wn. App. 1039, review denied, 60 P.3d 93. Then,
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this court issued a mandate terminating review on November 5,2002.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones

       Between 2004 and 2006, Mr. Jones apparently filed two unsuccessful PRPs

based on newly discovered evidence. In September 2010, he filed a PRP with our

Supreme Court, arguing his convictions for first degree burglary and one count of

attempted first degree robbery as predicates to his first degree felony murder conviction

violated double jeopardy principles. The State conceded this argument. Additionally,

he challenged his firearm sentence enhancements. A five-justice department of our

Supreme Court unanimously accepted the State's concession on his double jeopardy

argument but rejected his challenges to his firearm sentence enhancements. Thus, in

September 2011, our Supreme Court granted Mr. Jones's PRP in part and remanded to

the trial court with directions to vacate his convictions for first degree burglary and one

count of attempted first degree robbery, and resentence him accordingly.

       On remand, the trial court vacated Mr. Jones's convictions for burglary and one

count of attempted robbery. The court imposed 429 months' imprisonment with a 120­

month firearm sentence enhancement for his felony murder, 96.75 to 120 months'

imprisonment with a 72-month firearm sentence enhancement for each of his two

counts of attempted robbery, and 116 months' imprisonment for his unlawful firearm

possession. The court ordered he serve the felony murder sentence concurrent with

the other base sentences but consecutive to the other sentence enhancements, for a

total of 693 months' imprisonment. These are the same base sentences and firearm

sentence enhancements the court previously imposed for his remaining convictions.




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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones

       The court arrived at this result after considering and rejecting one of Mr. Jones's

new arguments. Initially, the court assured the parties it had thoroughly prepared itself

for resentencing:

           In preparation for today's extensive hearing, everyone should know 

      that I spent a great deal of time preparing for this. I read the entire court 

      file, which is actually four full volumes. I read all of counsels' respective 

      memorandums. I read the defense memorandum from top to bottom, 

      which was quite voluminous. I also was apprised of a great deal of case 

      law, and I think the parties and Mr. Jones deserve to have the best the 

      Court has to offer. So I took the time to go through all of that material, and 

      I actually spent till almost 9:00 at night here last night going through this. 

      That's how important I think this is. 


          [The issue is], what to do with the balance of the counts which survive

          So, as I said, I've studied this file very carefully. I'm certainly mindful of 

      the argument of Counsel. I think I'm well-advised regarding the law in this 

      area that has been provided. 


Report of Proceedings (RP) (Feb. 10,2012) at 46-47,50.

      Then, the court extensively discussed Mr. Jones's request for an exceptional

sentence downward, ruling:

          But the question is, ... whether the Court should consider [Mr. Jones's
      troubled youth and hopeful adult progress] this morning as a mitigating
      factor in terms of resentencing as to this gentleman.
          I have considered the same. I've considered it in great regard. 

      Frankly, I am not necessarily convinced that the Court should adopt any 

      mitigating factor this morning. . .. I will not be directing a mitigation 

      sentence downward. 


RP (Feb. 10,2012) at 54.

      Finally, the court declined to consider Mr. Jones's request to halve the firearm

sentence enhancements because a five-justice department of our Supreme Court had

unanimously rejected this portion of his PRP:
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No. 30672-1-111, conso/. with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones

           So let me now turn to the issue of the various enhancements ... , the
      most significant fact of the enhancements being the doubling that was
      ordered ....
           Counsel for Mr. Jones has raised I think a very valid and solid
      argument regarding a significant point here that the enhancements and
      the doubling and whether the underlying predicate offense was ever
      demonstrated at the trial Court level ....
      . . . [T]he language of the Supreme Court, which I've read several times,
      from September 7,2011, is very telling. I would submit to counsel it's
      mandatory language, and it reads, again, "Mr. Jones' challenge to the
      firearm enhancements is unanimously rejected." That's mandatory
      language, again, as far as this Court considers.
           It does make clear to me that firearm enhancement was certainly a
      matter that the appellate court had under its review and entertained and
      should not be considered by the trial Court for purposes of resentencing,
      for purposes of either vacating those enhancements, reconsidering them,
      modifying them. They were unanimously rejected at the appellate level,
      and I will not be changing anything in that regard as to sentencing this
      morning.

RP (Feb. 10,2012) at 54-56.

      The trial court filed an amended judgment and sentence on February 13, 2012.

On February 15, 2012, Mr. Jones moved to vacate all his convictions under CrR 7.8,

arguing the trial court in 2000 did not arraign him on the amended information, he did

not receive a copy of it, and he lacked actual notice of its charges. He appealed his

amended judgment and sentence. The trial court transferred his motion to this court for

treatment as a PRP.

                                       ANALYSIS

                                    A. Direct Appeal

      The issue is whether Mr. Jones's appeal presents a reviewable error claim. The

State argues we must dismiss his appeal because his new contentions address matters
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beyond the scope of the trial court's action on remand.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones

         On remand, a trial court may "exercise independent judgment" regarding issues

the parties did not raise in earlier appellate review and, where it does so, the decision is

subject to later appellate review. RAP 2.5(c)(1) cmt., 86 Wn.2d 1153 (1976); see State

V.   Barberio, 121 Wn.2d 48,50-51,846 P.2d 519 (1993). But "a case has no remaining

appealable issues where an appellate court issues a mandate reversing one or more

counts and affirming the remaining count[s], and where the trial court exercises no

discretion on remand as to the remaining final counts." State   V.   Kilgore, 167 Wn.2d 28,

37,216 P.3d 393 (2009). "Only if the trial court, on remand, exercised its independent

judgment, reviewed and ruled again on such issue does it become an appealable

question." Barberio, 121 Wn.2d at 50.

        Here, the trial court considered Mr. Jones' argument for an exceptional sentence

downward and decided it against him. Thus, the court exercised independent judgment

on this issue by reviewing and ruling on it. But Mr. Jones does not raise this issue in his

direct appeal. He instead argues two of his attempted robbery convictions and firearm

sentence enhancements violate double jeopardy principles because they are premised

on the same actus reus. The court never considered this argument on the record and,

unfortunately, did not explain why it failed to do so. Mr. Jones suggests the court

confused this argument with his request to halve all four of his firearm sentence

enhancements. He then suggests the court abused its discretion by mistakenly

believing our Supreme Court's order deprived it of authority to rule on this argument.

But the trial court clearly read the order as addressing Mr. Jones's argument on

"doubling" of his firearm sentence enhancements solely. RP (Feb. 10,2012) at 55.


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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones

While our record does not contain his most recent PRP to our Supreme Court, he

represented to both the trial court and this court that his argument concerned whether

the State proved the prerequisite for "doubling" his firearm sentence enhancements.

CP at 61, 66; Opening Sr. at 10. This argument rested on different grounds than those

Mr. Jones raises in his direct appeal.

       Our record shows Mr. Jones raised his current double jeopardy argument for the

first time on remand and, while the trial court assured the parties it had thoroughly

prepared itself for resentencing, it never considered his current double jeopardy

argument on the record. In sum, the court did not exercise independent judgment on

the issue he raises in his direct appeal. Therefore, his appeal presents no reviewable

error claim.

                                         S. PRP

       The issue is whether Mr. Jones's PRP is time barred. 1 The State argues we

must dismiss his PRP because he filed it more than one year after his original judgment

and sentence became final.

       Where a trial court with competent jurisdiction enters a facially valid 2 judgment

and sentence, a defendant must collaterally attack the judgment if at all within one year

of the date it becomes final. RCW 10.73.090(1). A PRP is a collateral attack. RCW

10.73.090(2). If the defendant does not bring a timely direct appeal, the judgment



        Considering our analysis below, we do not reach the parties' arguments on
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whether Mr. Jones's PRP is procedurally barred under RAP 16.4(d) or RCW 10.73.140.
      2 Mr. Jones does not argue the trial court's alleged error rendered his judgment
and sentence facially invalid.

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No. 30672-1-111, consolo with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones

becomes final for PRP purposes on the date the trial court files it with the clerk. RCW

10.73.090(3)(a). If the defendant brings a timely direct appeal, the judgment becomes

final for PRP purposes on the date the appellate court issues a mandate terminating

review. RCW 10.73.090(3)(b). But the judgment is not final until both the convictions

and sentences are final. In re Pers. Restraint of Sky/stad, 160 Wn.2d 944, 946, 952,

955, 162 P.3d 413 (2007).

       Essentially, a judgment becomes final for PRP purposes "when all litigation on

the merits ends." Id. at 948-49. In this context, litigation on the merits includes remand

from direct review-either an appeal to our state courts alone or an appeal to our state

courts followed by a petition for certiorari to the U.S. Supreme Court. RCW

10.73.090(3); Sky/stad, 160 Wn.2d at 948-52. But remand from a successful PRP

cannot restart litigation on the merits so as to extinguish finality for purposes of

subsequent PRPs. See Sky/stad, 160 Wn.2d at 948-52. As our Supreme Court

recently stated,

       [O]nce the one-year time limit has run, a petitioner may seek relief only for
       the defect that renders the judgment not valid on its face [under RCW
       10.73.90] (or one of the exceptions listed in RCW 10.73.100). And when
       that defect is cured, the entry of a corrected judgment does not trigger a
       new one-year window for judgment provisions that were always valid on
       their face. . .. [R]aising a claim under one of the exceptions ... does not
       open the door to other time-barred claims.

In re Pers. Restraint of Adams, No. 87501-4, slip op. at 8-12 (Wash. Sept. 12,2013)

(discussing In re Pers. Restraint of Coats, 173 Wn.2d 123,267 P.3d 324 (2011);

Sky/stad, 160 Wn.2d 944).




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No. 30672-1-111, consol. with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones

          Here, the trial court filed Mr. Jones's original judgment and sentence with the

clerk on January 29, 2001 and issued an order correcting his sentence the next day.

He timely appealed his convictions while the time for appealing his sentences passed.

We affirmed his convictions and our Supreme Court denied review. Jones, 2002 WL

982618, at *1. Then, this court issued a mandate terminating review on November 5,

2002. Thus, his convictions and sentences became final on November 5,2002. See

RCW 10.73.090(3)(b). But he filed his current PRP with the trial court nearly 10 years

later on February 15, 2012.

       Mr. Jones's most recent PRP to our Supreme Court was timely because the

double jeopardy argument he raised there fit an exception to the one year limit on

collateral attacks. See RCW 10.73.100(3). But remand from that successful PRP did

not restart litigation on the merits so as to extinguish finality for purposes of subsequent

PRPs. See Skylstad, 160 Wn.2d at 948-52. In other words, Mr. Jones's amended

judgment and sentence did not remove the time bar on his current PRP to this court.

See Adams, slip op: at 8-12. Vacating his unlawful convictions and resentencing him

did not affect the finality of his remaining convictions. See id.; cf. McNutt v. Delmore, 47

Wn.2d 563, 565, 288 P.2d 848 (1955), overruled on other grounds by State v.

Sampson, 82 Wn.2d 663,513 P.2d 60 (1973); In re Pers. Restraint of Carle, 93 Wn.2d

31,34,604 P.2d 1293 (1980); Kilgore, 167 Wn.2d at 37. Therefore, his PRP is time

barred.

       Mr. Jones's appeal and PRP are dismissed.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                  Brown, J.   (j
WE CONCUR:




   ~Iacr

Siddoway, A.C.J.




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