          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


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STATE OF WASHINGTON,                     ]
                                                No. 69311-5-1
                    Respondent,          ]                                                     '-v—.
                                                DIVISION ONE
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                                                                                       vP      S^-j
MICHAEL J. ROWLAND,                      ]      UNPUBLISHED OPINION
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                                         J      F|LED:      OCT 142013
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                    Appellant.


      Per Curiam. — Michael Rowland appeals the exceptional sentence imposed

following his second resentencing for first degree murder and taking a motor vehicle

without permission. He contends his sentence violates Blakelv v. Washington, 542 U.S.

296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and sentencing statutes because it is

based on a factual finding made by the court, not a jury. We affirm.

      In 1991, a jury convicted Rowland of first degree murder and taking a motor

vehicle without permission. The trial court imposed a high-end standard range sentence

of 361 months and added an exceptional sentence of 180 months based on its finding of

deliberate cruelty. Rowland challenged the basis for the exceptional sentence on direct

appeal. This court affirmed. State v. Rowland, 76 Wn. App. 1072, No. 28109-7-1, 1995

WL 925646 (1995) (unpublished opinion), review denied, State v. Rowland, 126 Wn.2d

1025, 896 P.2d 63 (1995). The mandate issued on June 26, 1995.

       In January 2007, Rowland filed a personal restraint petition challenging his

offender score. This court accepted the State's concession that the offender score

should have been 2, not 3. We remanded for resentencing, stating "[t]he error in the

offender score potentially bears upon the length of the exceptional sentence, but it does
No. 69311-5/2



not implicate the findings that justified imposition of the exceptional sentence." In re

Pers. Restraint of Rowland, 149 Wn. App. 496, 512, 204 P.3d 953 (2009). On remand,

the court left the original exceptional sentence of 180 months intact but reduced the

remainder of the sentence in accordance with the reduced standard range.

       Rowland appealed, arguing that his exceptional sentence violated Blakely

because it was based on an aggravating factor found by the court, not a jury. This court

and the Supreme Court affirmed. State v. Rowland, 160 Wn. App. 316, 329, 249 P.3d

635. review granted, 172Wn.2d 1014. 262 P.3d 63 (2011): State v. Rowland, 174Wn.2d

150, 156, 272 P.3d 242 (2012). The Supreme Court held "that Blakely did not apply

when the trial court neither touched the factual findings supporting the exceptional

sentence nor increased the sentence." ]d_. Because the State conceded that Rowland's

offender score was actually one, not two, the Supreme Court remanded "for any further

proceedings." On remand, the court again reduced Rowland's standard range sentence

but left the exceptional sentence unchanged.

       Rowland appeals again, arguing, as he did before, that the sentence imposed on

remand violated Blakely because the court relied on an aggravating factor found by the

original sentencing judge, not a jury. He acknowledges that his original sentencing

occurred prior to Blakely and that the exceptional portion of his sentence remains

unchanged. He argues, however, that both the deliberate cruelty finding and exceptional

sentence were imposed anew at his resentencing because the resentencing court had

discretion to alter the sentence. He concludes, therefore, that Blakely applied at his
No. 69311-5/3



resentencing. This argument is controlled by the Washington Supreme Court's decision

following Rowland's first resentencing.

      The Supreme Court held that while the resentencing court had discretion to

change Rowland's sentence, Blakely did not apply because the sentencing court "did not

redecide the justification for the exceptional sentence, and the change to Rowland's

standard range left the justification intact" and "did not increase the sentence." Rowland.

174 Wn.2d at 155-56. That holding applies equally to Rowland's second resentencing

hearing. Although Rowland disagrees with the Supreme Court's conclusion, we are

bound by it. MP Med. Inc. v. Wegman, 151 Wn. App. 409, 417, 213 P.3d 931 (2009).

       Rowland also argues that RCW 9.94A.537, which authorizes courts to empanel

juries at resentencing for the purpose of considering aggravating factors, required the
court to empanel a jury at his second resentencing hearing. But the statute contains no

such requirement. In any event, both this court and the Supreme Court previously noted
that the factual basis for Rowland's exceptional sentence was upheld in, and became

final after, his initial appeal, and that only his offender score and standard range were in

issue at his subsequent resentencing hearings. Rowland, 160Wn. App at 326; Rowland.
174 Wn.2d at 155. Accordingly, the statute did not apply below.

       Affirmed.
                                                              For the court:
