                                                                         FILED
                                                                      MARCH 21, 2019
                                                               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. 35782-1-III
                     Respondent,             )
                                             )
       v.                                    )
                                             )
TYLER SCOTT FIFE,                            )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

       FEARING, J. — This court previously remanded the prosecution of Tyler Fife for

resentencing and for the sentencing court to exercise discretion in determining whether to

grant a downward exceptional sentence. Fife claims he should receive an exceptional

sentence because he committed his crimes under duress and without a predisposition to

commit the crimes. The resentencing court refused the downward exceptional sentence.

Because the resentencing court exercised its discretion within the appropriate standards,

we affirm.
No. 35782-1-III
State v. Fife


                                          FACTS

       Tyler Fife confessed that he and three other individuals burglarized two homes and

an attached garage to one home on December 1, 2014. He contends that he participated

in the crimes because of duress imposed by Sean Dahlquist.

       During trial, Tyler Fife testified that, because he resided in Okanogan County for a

long time, he “kind of” knew Sean Dahlquist. RP1 at 275. On cross-examination, Fife

admitted knowing Dahlquist to be a troublemaker. He recounted that, on December 1,

2014, Dahlquist appeared at a mutual friend’s home, they socialized for a while, and he,

his girlfriend, Samantha Garcia, and Chantelle Mendivil agreed to go on a drive with

Dahlquist.

       At trial, Tyler Fife further testified that he and Samantha Garcia assisted with the

burglaries from fear that Sean Dahlquist, the instigator of the crime spree, would

physically harm them if either refused to abet. Fife testified that Dahlquist threatened

both him and Garcia: “‘If you guys don’t get out [of the truck][,] I’m going to make

you.’” RP1 at 291. Later, according to Fife, Dahlquist threatened to stab him with a

knife if he did not help burglarize the first home. When Fife did not comply, Dahlquist

grabbed his arm and forced him out of the truck and into the home.

       After ransacking the first home, the quartet retired to the Nicholas Motel in Omak

to unload their bounty. Later that evening, Sean Dahlquist, Chantelle Mendivil, and

Tyler Fife departed toward Tonasket to burglarize the second home. Fife testified that

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No. 35782-1-III
State v. Fife


Dahlquist did not trust him to stay behind with Samantha Garcia at the hotel and said,

“‘[y]ou’re coming with me.’” RP1 at 308. When demanding Fife’s participation,

Dalhquist played with a stolen pistol from the first home. Fife obeyed again. Garcia

testified and confirmed Fife’s testimony of threats from Dahlquist.

                                      PROCEDURE

       The State of Washington charged Tyler Fife with thirteen criminal counts, which

included charges for burglary, theft, possession of stolen property, malicious mischief,

and possession of controlled substances, all related to the December 1 crime spree. The

charges included one count of first degree burglary based on Sean Dahlquist being armed

with a gun that he stole from the first home. Fife asserted the defense of duress. A jury

rejected Fife’s duress defense and found him guilty of all thirteen counts.

       During initial sentencing, Tyler Fife requested an exceptional sentence downward

based on the mitigating factors of duress and a lack of criminal predisposition. The trial

court rejected Fife’s request for an exceptional sentence. Nevertheless, the court cited the

standard for the exceptional sentence as “substantial and compelling evidence that there

was duress” instead of “substantial and compelling reasons” for a departure shown by a

preponderance of the evidence. The trial court also failed to address the request for an

exceptional sentence on the basis that Fife lacked a predisposition for criminal behavior.

The trial court sentenced Fife to standard range sentences on all counts. Tyler Fife

appealed. In State v. Fife, No. 34442-8-III (Wash. Ct. App. Sept. 14, 2017),

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No. 35782-1-III
State v. Fife


(unpublished), https://www.courts.wa.gov/opinions/pdf/344428_unp.pdf, this court held

that the trial court applied the wrong legal standard under RCW 9.94A.535 for mitigating

factors and that the court failed to consider Fife’s request for an exceptional sentence

based on a lack of criminal predisposition. This court remanded for resentencing with

instructions that the court consider whether to grant a downward sentence based on Fife’s

claim that he suffered duress and lacked a criminal predisposition.

       During resentencing, Tyler Fife again requested an exceptional downward

departure from the standard range sentence based on the mitigating factors of duress and

lack of criminal predisposition. During the resentencing hearing, the trial court

entertained comments from the State, defense counsel, Fife, and Fife’s mother.

       When resentencing Tyler Fife, the resentencing court discussed this court’s

opinion in State v. Fife, No. 34442-8-III, clarified the standard for a downward sentence,

and addressed Fife’s request for an exceptional sentence based on duress and lack of

criminal predisposition. The court commented:

               [B]ut for those of you in the courtroom, and for the record, and for
       the sake of the Court of Appeals if there’s ever any other appellate matter
       involving this case, I don’t want anyone to feel that the Court today has
       disregarded any of the stated reasons for the defense’s request for an
       exceptional sentence. In other words, be clear folks, that I am mindful of
       the defendant’s claim of duress and—and that he lacked a pre-disposition
       for criminal behavior. And I truly hope that everyone in this courtroom
       feels like this Court has considered this matter at length because I have.

RP2 at 40.


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No. 35782-1-III
State v. Fife


      The resentencing court rejected Tyler Fife’s request for an exceptional sentence

downward on duress and lack of criminal predisposition. The court remarked:

              So, for purposes of re-sentencing, and for the record, and any future
      potential appellate review, the Court today, again, rejects the defendant’s
      request for an exceptional sentence. Specifically, and regardless of the
      jury’s verdicts, the Court finds that Mr. Fife’s contention is arguable at
      best. He claims he refused or couldn’t or didn’t leave due to his fear that
      Mr. Dahlquist would hurt him or Ms. Garcia if he left or sought help. Yet,
      the evidence presented at trial showed opportunities when he might have
      left or ceased participation. The evidence is arguable and such that the
      Court cannot conclude by a preponderance that the defendant acted under
      duress or threat, even an amount less than necessary to establish the legal
      defense of duress.
              ....
              . . . Likewise, the Court today is denying an exceptional sentence
      based on a lack of predisposition to crime and/or that someone else induced
      him to commit the crimes.
              It may be true that the defendant has minimal criminal history. But,
      it’s interesting, as counsel pointed out last week, that Mr. Fife had only
      been in Okanogan County for a very short period of time and in that time
      managed to become acquainted with, and apparently to some degree,
      befriended Mr. Dahlquist. I don’t like the word disingenuous, but it is a
      contradiction to say really that on one hand Mr. Fife chose to hang out with
      this other person, befriending him to some degree or another, but at the
      same time, didn’t know what was going on. So, I’m not satisfied that the
      evidence supports an exceptional sentence based on a lack of pre-
      disposition or that someone else is somehow responsible.
              We know Mr. Fife has some criminal history. We know he has other
      issues and so the Court today declines to impose an exceptional sentence.

RP2 at 43-45. The resentencing court amended the sentence on the controlling

first degree burglary charge to the low end of the standard range, 77 months.

      At the conclusion of resentencing, the court commented:



                                            5
No. 35782-1-III
State v. Fife


              If you choose to appeal, you have the right to be represented by an
       attorney. If you cannot afford to hire your own attorney, the Court will
       appoint counsel to represent you and that’s at public expense. If you
       choose to hire your own attorney, that’s your business. Either way, if you
       choose to appeal, you must, within thirty days of today, file a notice of
       appeal that sets forth any errors of law that you feel the Court has
       committed. Again, at any stage of any of the proceedings at the trial Court
       level.

RP2 at 47 (emphasis added).

                                  LAW AND ANALYSIS

       Tyler Fife asserts four contentions on appeal. First, insufficient evidence

supported his conviction for first degree burglary. Second, the exceptional sentence

sentencing statute is unconstitutional as applied to him. Third, the resentencing court

abused its discretion when refusing to grant a downward exceptional sentence because of

his duress. Fourth, the resentencing court abused its discretion when failing to grant a

downward exceptional sentence because of his lack of a criminal predisposition. Fife

raises the first two contentions for the first time on this second appeal.

                                    Insufficient Evidence

       Tyler Fife argues that he did not have the requisite mental state for the first degree

burglary conviction. He emphasizes that the State presented no evidence to support an

inference that he entered the residence with the intent to commit a crime therein, an

element of first degree burglary under RCW 9A.52.020.




                                              6
No. 35782-1-III
State v. Fife


       A claim of insufficient evidence in support of a conviction is an issue of

constitutional magnitude that an appellant may raise for the first time on appeal. RAP

2.5(a)(3); State v. Cardenas-Flores, 194 Wn. App. 496, 508-09, 374 P.3d 1217 (2016),

aff’d, 189 Wn.2d 243, 401 P.3d 19 (2017). Nevertheless, a defendant is generally

prohibited from raising issues, including constitutional issues, on a second appeal that he

could have raised on the first appeal. State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894

(1983); State v. Mandanas, 163 Wn. App. 712, 716-17, 262 P.3d 522 (2011).

       The appeal now before this court is Tyler Fife’s second appeal. Fife asserts,

however, that he is entitled to raise any assignments of error from any portion of the

proceedings against him because of the resentencing court’s broad comment, at the

conclusion of resentencing:

              if you choose to appeal, you must, within thirty days of today, file a
       notice of appeal that sets forth any errors of law that you feel the Court has
       committed. Again, at any stage of any of the proceedings at the trial Court
       level.

RP2 at 47 (emphasis added). We do not read the trial court’s statement as broad as Fife.

The resentencing court did not promise Fife that this reviewing court would entertain any

assignment of error from any stage of the prosecution. Instead, the resentencing court

informed Fife that, assuming he wishes to appeal any ruling during any stage of the

proceeding, he must file a notice of appeal within thirty days. Also, we know of no rule

that permits the superior court to bind the Court of Appeals into an obligation to entertain


                                              7
No. 35782-1-III
State v. Fife


an assignment of error otherwise not reviewable.

       Tyler Fife cites no authority, in his opening brief, establishing that a defendant

may raise a contention not asserted in the first appeal. He instead cites RAP 2.5(a)(2) and

(3) and RAP 2.5(c) in his reply brief. The applicable rule, RAP 2.5(c)(1), states:

               . . . If a trial court decision is otherwise properly before the appellate
       court, the appellate court may at the instance of a party review and
       determine the propriety of a decision of the trial court even though a similar
       decision was not disputed in an earlier review of the same case.

       RAP 2.5(c)(1) has its limits. The rule does not automatically revive every issue or

decision not raised in an earlier appeal. State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d

519 (1993). Rather, we will entertain a new issue on the second appeal only if the trial

court, on remand, exercised independent judgment and reviewed and ruled again on the

issue. State v. Barberio, 121 Wn.2d at 50. Tyler Fife’s resentencing court did not

consider the sufficiency of the evidence for any conviction. Therefore, we deny review

of this assignment of error.

       We deem State v. Mandanas, 163 Wn. App. 712 (2011) controlling. Bayani

Mandanas appealed his sentence. This court found that the trial court abused its

discretion in its determination of same or separate criminal conduct, and this court

remanded for resentencing. In a second appeal, Mandanas raised a double jeopardy claim

to challenge his convictions. This court held that the defendant’s double jeopardy

challenge was not timely since Mandanas never raised it in his first appeal. The court


                                               8
No. 35782-1-III
State v. Fife


observed that even an issue of constitutional import cannot be raised in a second appeal.

At some point, the appellate process must stop.

                             Constitutionality of Sentencing Statute

          At the time of the initial sentencing and the resentencing, Tyler Fife sought a

downward exceptional sentence under RCW 9.94A.535. The statute permits the

sentencing court to sentence below the standard range if, based on a preponderance of

evidence, the sentencing court finds:

                 The defendant committed the crime under duress, coercion, threat, or
          compulsion insufficient to constitute a complete defense but which
          significantly affected his or her conduct.

RCW 9.94A.535(1)(c). Fife argues that the statutory scheme is unfair to him under the

context when the State charged him with first degree burglary. For the jury to convict

him of first degree burglary, the jury must find that he or one of his accomplices armed

himself with a firearm. The State presented testimony that Sean Dahlquist armed

himself. Yet, Fife testified and argued that Dahlquist employed the firearm as a

mechanism of the duress, coercion, threat or compulsion that Fife suffered. Thus, Fife

asserts that he needed to either forgo his right to present a defense of duress or remain

silent. Thus, the law and evidence coerced him into testifying against himself and

interfered in his right to defend himself in violation of his Fifth and Sixth Amendment

rights.

          We applaud Tyler Fife’s resourcefulness in asserting this contention.

                                                9
No. 35782-1-III
State v. Fife


Nevertheless, we decline to review the argument since Fife did not raise the contention

during his first appeal or during trial. As stated before, a defendant may not raise even a

constitutional argument for the first time on a second appeal. State v. Sauve, 100 Wn.2d

at 87 (1983); State v. Mandanas, 163 Wn. App. at 717 (2011).

                                           Duress

       Tyler Fife contends that the trial court erred when refusing his request for a

downward exceptional sentence based on duress because the trial court failed to employ

the proper procedure in its consideration and denied the request on impermissible

grounds. The State concedes that a defendant may appeal the procedure a trial court

follows when considering an exceptional sentence. Nevertheless, the State argues that

Fife does not present an appealable issue because no procedural errors occurred on

resentencing. The State also contends that, even if the issue is appealable, the trial court

thoroughly analyzed the issue of whether Fife established duress for the purpose of

sentencing, and the court did not abuse its discretion.

       Although a standard range sentence is generally not appealable due to the rigid

language of RCW 9.94A.585, a defendant may appeal the procedure the trial court

followed when imposing his sentence. State v. Knight, 176 Wn. App. 936, 957, 309 P.3d

776 (2013). While no defendant is entitled to an exceptional sentence below the standard

range, every defendant is entitled to ask the trial court to consider such a sentence and

have the alternative actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d

                                             10
No. 35782-1-III
State v. Fife


1183 (2005). Failure to consider an exceptional sentence is reversible error. State v.

Grayson, 154 Wn.2d at 342.

       When a defendant requests an exceptional sentence downward, the denial of that

request can be reviewed if the sentencing court either “refused to exercise discretion at all

or has relied on an impermissible basis for refusing to impose an exceptional sentence.”

State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). A court refuses

to exercise discretion if it refuses categorically to impose an exceptional sentence below

the standard range under any circumstances. State v. Garcia-Martinez, 88 Wn. App. at

330. A court relies on an impermissible basis for declining to impose an exceptional

sentence below the standard range when, for example, the court determines that no drug

dealer should get an exceptional sentence or it refuses to consider a request on the basis

of the defendant’s race, sex or religion. State v. Garcia-Martinez, 88 Wn. App. at 330.

Conversely, when a court considers facts and finds no legal or factual basis for an

exceptional sentence, the sentencing court has exercised its discretion, and the defendant

cannot appeal that ruling. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002).

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, allows trial courts to

consider a “failed defense” as a mitigating factor justifying an exceptional sentence

below the standard range even if the jury convicted the defendant and rejected the

proffered defense. State v. Jeannotte, 133 Wn.2d 847, 858-59, 947 P.2d 1192 (1997).

RCW 9.94A.535 reads, in relevant part:

                                             11
No. 35782-1-III
State v. Fife


               The court may impose a sentence outside the standard sentence
       range for an offense if it finds, considering the purpose of this chapter, that
       there are substantial and compelling reasons justifying an exceptional
       sentence. . . .
               ....
               (1) Mitigating Circumstances—Court to Consider
               The court may impose an exceptional sentence below the standard
       range if it finds that mitigating circumstances are established by
       a preponderance of the evidence. The following are illustrative only and are
       not intended to be exclusive reasons for exceptional sentences.
               ....
               (c) The defendant committed the crime under duress, coercion,
       threat, or compulsion insufficient to constitute a complete defense but
       which significantly affected his or her conduct.

       Tyler Fife asserts that the trial court impermissibly focused only on duress and

failed to address other statutory words such as coercion, threat, or compulsion. Fife also

contends that the trial court erred in its inquiry because it focused solely on his ability or

lack thereof to abandon the criminal enterprise and therefore the court employed an

incorrect legal standard under RCW 9.94A.535(1)(c). We disagree.

       The resentencing court properly exercised its discretion when it considered Tyler

Fife’s request for an exceptional sentence. The court understood its options and the

appropriate standards and determined that an exceptional sentence downward was not

appropriate for Fife. The court considered the evidence and did not find that Fife acted

under duress or threat. The court did not use the words “compulsion or coercion,” but we

deem those words to bear the same meaning in this context to the words uttered by the

court: “duress” and “threat.”


                                              12
No. 35782-1-III
State v. Fife


      The sentencing court likewise did not rely solely on an impermissible basis in

denying his request for an exceptional sentence. At the resentencing hearing, the court

entertained comments from the State, defense counsel, Tyler Fife’s mother, and Fife

himself. The court found that evidence presented at trial showed times when Fife could

have refused to participate or ceased participation altogether and imposed a standard

range sentence.

      Tyler Fife complains that the trial court impermissibly based its decision on an

incorrect legal standard because abandonment of the criminal enterprise is nowhere to be

found under RCW 9.94A.535(1)(c). Nevertheless, a court’s discussion regarding a

defendant’s opportunity to remove oneself from participating in the criminal activity

relates to whether the defendant acted under coercion and duress.

                             Lack of Criminal Predisposition

      Tyler Fife also contends the trial court improperly denied his request for a

downward exceptional sentence because of his lack of a predisposition to commit

criminal acts. RCW 9.94A.535(1)(d) allows an exceptional sentence when:

            The defendant, with no apparent predisposition to do so, was
      induced by others to participate in the crime.

      We employ the same analysis employed with regard to the factor of duress. A

defendant may appeal the procedure the trial court followed when imposing a standard

range sentence or in considering an exceptional sentence. State v. Knight, 176 Wn. App.



                                            13
No. 35782-1-III
State v. Fife


at 957. The reviewing court’s inquiry is limited to whether the trial court refused to

exercise discretion at all or relied on an impermissible basis for its refusal of an

exceptional sentence. State v. Garcia-Martinez, 88 Wn. App. at 330.

       Tyler Fife contends that the resentencing court erred because it relied on facts

outside the record and such a “foray” is an impermissible basis for declining a downward

exceptional sentence based on a lack of criminal predisposition. He takes exception to

the trial court’s comment regarding his “befriending” of Sean Dahlquist.

       We agree with Tyler Fife that a sentencing court may not rely on extrajudicial

information, but must rely on facts admitted, proved, or acknowledged when determining

any sentence. State v. Grayson, 154 Wn.2d at 338-39 (2005). Nevertheless, trial

testimony showed that Fife knew Sean Dahlquist and they spent time together. The court

could draw a reasonable inference that Fife and Dahlquist were friends. Fife knew

Dahlquist had a criminal past. Also, Fife possessed a criminal history.

                                       CONCLUSION

       We affirm the trial court’s resentencing of Tyler Fife.




                                              14
No. 35782-1-III
State v. Fife


      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.



                                            Fearing, J.

WE CONCUR:




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Pennell, A.CJ.




                                           15
