      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                                  No. 70254-8-1                  cr
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JOHN CHARLES THOMPSON,                                UNPUBLISHED                    c




                     Appellant.                       FILED: August 18, 2014




       Cox, J. - John Charles Thompson challenges his judgment and sentence,

arguing that the court lacked authority to impose a firearm enhancement where

the jury found that Thompson was armed with a deadly weapon. The sentencing

court expressly declined to exercise independent judgment as to the

enhancement on remand. So there is no basis for Thompson to challenge that

aspect of the judgment and sentence.

       In his statement of additional grounds, Thompson claims that we should

exercise our discretion to address a new argument on appeal concerning the

accomplice liability instruction at his 1998 trial. We decline to reach this issue

and affirm.

        In 1998, a jury convicted Thompson of murder in the first degree and

unlawful possession of a firearm in the first degree. By special verdict, the jury

answered affirmatively that Thompson was armed with a deadly weapon.

Notwithstanding that verdict, the trial court imposed a 60-month firearm

enhancement on the murder conviction.
No. 70254-8-1/2



      Thompson appealed, claiming errors related to the trial but not to

sentencing.1 In an unpublished opinion, this court affirmed his convictions.2

Subsequently, the supreme court denied his petition for review.3

      In January 2011, Thompson filed a personal restraint petition challenging

his sentence.4 First, Thompson claimed that his judgment and sentence was

invalid on its face because the sentencing court exceeded its authority by

imposing a sentence above the standard range.5 Second, he claimed that his

60-month firearm enhancement was invalid under State v. Williams-Walker. The

reason was that the jury found by special verdict that Thompson was armed with

a deadly weapon, not a firearm.6 Under that case, a sentencing court cannot

impose a firearm enhancement when the jury merely finds the defendant was

armed with a deadly weapon.7 In such a case, the harmless error doctrine does

not apply.8



       1 See State v. Thompson, noted at 97 Wn. App. 1038, 1999 WL 730912.



       3 State v. Thompson, 140 Wn.2d 1009, 999 P.2d 1263 (2000).

       4 In re Pers. Restraint of Thompson, noted at 170 Wn. App. 1043, 2012
WL 4335446 at *1.




       6 \± at *2 (citing State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913
(2010)).

       7 Williams-Walker, 167 Wn.2d at 898.

       8 Id. at 902.
No. 70254-8-1/3



       In response to Thompson's petition, the State conceded that the judgment

and sentence was invalid on its face because Thompson's offender score on the

murder conviction was incorrect.9 This court accepted the State's concession

about the offender score, but it rejected Thompson's argument about the firearm

enhancement.10 This court noted that the rule articulated in Williams-Walker was

not retroactive and that "Thompson's sentence became final before [that case]

was decided."11 Further, this court stated that Thompson had not demonstrated

actual prejudice.12 Accordingly, it denied his claim for relief regarding the firearm

enhancement and remanded for resentencing.13

       In March 2013, Thompson, acting pro se, moved for relief from judgment

pursuant to CrR 7.8, arguing in part that the jury was given a prejudicial and

erroneous accomplice liability instruction.

       Later that month, the case proceeded to resentencing before a different

judge than the one imposing the original sentence. At the hearing, the State

asked the court to impose the high end of the range, as the original sentencing

judge had, plus the original 60-month firearm enhancement. Defense counsel

argued for the low end of the standard range and asked the court to impose an

exceptional sentence downward.

       9 In re Thompson, 2012 WL 4335446, at *1.

       10 \± at *2.

       11 Id,

       12 Id

       13 Id.
No. 70254-8-1/4



      At the conclusion of the hearing, the judge stated that it was not "legally

appropriate" to change the firearm enhancement. Additionally, he declined to

grant Thompson's request for an exceptional sentence downward. The judge

then considered several factors to determine the appropriate sentence within the

newly calculated range. The corrected standard range was 341 months to 434

months for the murder charge, and 31 months to 41 months for the unlawful

possession charge. The court sentenced Thompson to 410 months and 41

months, respectively, time to run concurrently.

      The court also denied Thompson's CrR 7.8 motion.

      Thompson appeals.

                        SENTENCING ENHANCEMENT

      Thompson argues that the sentencing court lacked authority to impose a

60-month enhancement for a firearm where the jury found that Thompson was

armed with a deadly weapon, not a firearm. He contends that the propriety of

this enhancement is properly before this court because the sentencing court

"exercised discretion and found a firearm enhancement." We disagree.

      The trial court's discretion on remand is limited by the scope of the

appellate court's mandate.14 "[W]hen, on remand, a trial court has the choice to

review and resentence a defendant under a new judgment and sentence or to




       14 State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009).
No. 70254-8-1/5



simply correct and amend the original judgment and sentence, that choice itself

is not an exercise of independent judgment by the trial court."15

       "'Only if the trial court, on remand, exercised its independent judgment,

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

question.'"16 "[I]f the trial court simply corrects the original judgment and

sentence, it is the original judgment and sentence entered by the original trial

court that controls the defendant's conviction and term of incarceration."17

       "'Correcting an erroneous sentence in excess of statutory authority does

not affect the finality of that portion of the judgment and sentence that was

correct and valid when imposed.'"18 Thus, "[Wjhere one portion of a sentence is

found to be erroneous, it does not undermine that part of the sentence that is

otherwise valid."19 "An appellate court may remand for resentencing for an

erroneous offender score but leave the otherwise valid exceptional sentence

intact."20




        15 id, at 40.

        16 Id at 37 (quoting State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519
(1993)).

        17 Id, at 40-41.

        18 State v. Rowland, 160 Wn. App. 316, 326, 249 P.3d 635 (2011) (quoting
In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 877, 50 P.3d 618 (2002)).

        19 Id, at 328.

        20 Id.
No. 70254-8-1/6



      The cases State v. Kilqore21 and State v. Rowland22 are instructive.

       In Kilqore, the supreme court concluded that, because the trial court on

remand chose not to exercise its discretion, Mark Patrick Kilgore's case

remained final, and the trial court did not abuse its discretion when it declined to

invalidate Kilgore's exceptional sentence.23 It noted that the trial court "made

clear that in correcting the judgment and sentence to reflect the reversed counts,

it was not reconsidering the exceptional sentence imposed on each of the

remaining counts."24

       Similarly, in Rowland, this court granted Michael Rowland's personal

restraint petition challenging his offender score and remanded for resentencing.25
"[T]he resentencing court reconsidered only the erroneous offender score, while
declining to exercise its discretion to consider the exceptional sentence."26 Thus,
this court concluded that "while the finality of Rowland's standard range sentence

was disturbed by our remand for resentencing following his successful PRP, his

exceptional sentence was not."27



       21 167 Wn.2d 28, 216 P.3d 393 (2009).

       22 160 Wn. App. 316, 249 P.3d 635 (2011).

       23 Kilqore. 167 Wn.2d at 44.

       24 jd, at 41.

       25 Rowland, 160 Wn. App. at 320.

       26 id, at 328.

       27 Id. at 329.
No. 70254-8-1/7



          Here, as in these cases, the court made it abundantly clear on remand

that it was not reconsidering Thompson's entire sentence. At the outset, it

stated:


          And it is undisputed that the jury in fact did make certain findings
          beyond a reasonable doubt. And what we are here for is not a
          complete resentencing, but a resentencing to fix the specific
          error that was made by the original sentencing judge.
                 . . . This is not a complete redo.[28]

          The court also expressly stated that it could not legally reconsider the

firearm enhancement. Rather, it indicated that it only had discretion to sentence

Thompson within the corrected standard range:

          So there is—there was a legal argument regarding the Court
          changing the enhancement. But I don't think that is legally
          appropriate. Because I think as [defense counsel] has to concede,
          as she properly has to given [sic] the reading of case law, there is
          no retroactivity in terms of that particular legal issue.
                 So the Court will find that the correct standard range of count
          number one is 341 months to 434 months. And the correct
          standard range for count number two is 31 months to 41 months.
          Now, that is the standard range. And the Court has discretion to
          sentence a defendant within the standard range.™

After considering several factors, including Thompson's efforts while he has been

in custody, as well as the seriousness of the crime, it chose not to sentence

Thompson at the high end of the range like the original sentencing court. Instead

it sentenced Thompson closer to the middle of the corrected range.




          28 Report of Proceedings (Mar. 29, 2013) at 24 (emphasis added).

          29 jd, at 25 (emphasis added).
No. 70254-8-1/8



       At the conclusion of the hearing, the court once again reiterated that it did

not consider the other portions of Thompson's sentence, and it was merely

correcting the earlier error:

                 The other conditions of the original sentence will remain
          in effect as really, we are here to correct the offender score
          and the sentencing range, and therefore the sentence that arises
          therefrom. Counsel, we will need a corrected judgment and
          sentence.™

          This record is crystal clear that the sentencing court did not exercise its

discretion regarding Thompson's entire sentence. It did not reconsider the

firearm enhancement.

          We also note that Thompson's counsel did not ask the court to revisit the

enhancement. In arguing for the exceptional sentence downward, she correctly

stated:

                   Williams-Walker at this point has been held not retroactive.
          So we can't go back and correct what in retrospect appears to be a
          wrong to [Thompson] when his jury returned that very verdict. It
          wasn't the law at that time. And we so recognize that. But we think
          this Court can sentence him to the low end and make that
          adjustment downJ31]

          This court had already considered and rejected this claim for relief.32 In

his personal restraint petition, Thompson argued that his firearm enhancement

was invalid under Williams-Walker.33 This court noted that the Williams-Walker



          30 jd, at 28 (emphasis added).

          31 id, at 13.

          32 In re Thompson, 2012 WL 4335446 at *2.

          33 Id.



                                              8
No. 70254-8-1/9



rule is not retroactive and stated, "Because we do not presume prejudice and

Thompson has not demonstrated actual prejudice, we deny his claim for relief

regarding the enhancement."34

      Thompson argues that his case is distinguishable from Kilqore and

Rowland. He points out that in Kilqore, the trial court "simply corrected the

original judgment and sentence," and in Rowland, the trial court simply

substituted the high end of one standard range for that of another. He argues

that his case is different because the court "changed [his] standard range

sentence by sentencing to the middle of the range on his corrected offender

score—the original sentencing court had imposed the high-end of the range."35

He also argues the resentencing court "considered (and rejected)" his argument

for an exceptional sentence below the standard range.36

       But the facts that the court exercised discretion when it sentenced

Thompson to a lesser sentence within the standard range and denied his request

for an exceptional sentence down, do not distinguish this case in any material

way from Kilqore or Rowland. As previously stated, "'Only ifthe trial court, on

remand, exercised its independent judgment, reviewed and ruled again on such

issue does it become an appealable question.'"37 As in Kilqore and Rowland,



       34 jd, at *2 (emphasis added).

       35 Appellant's Opening Brief at 14.

       36 id, at 15.

       37 Kilqore, 167 Wn.2d at 37 (emphasis added) (quoting Barberio, 121
Wn.2d at 50).
No. 70254-8-1/10



the resentencing court here expressly declined to exercise its discretion to

consider the enhancement.

       Thompson next argues that the mandate was open ended, and the

resentencing court "reconsidered [his] entire sentence, entering a new judgment

and sentence."38 This does not comport with a plain reading of this record. This

record is crystal clear that it was not reviewing Thompson's entire sentence.

       Finally, Thompson argues that the sentencing court "made its own finding"

that Thompson was armed with a firearm. He points to the following portion of

the transcript, "'the Court is finding that the defendant was armed with a firearm,

hence the 60-month enhancement. That's why the J&S reflects firearm.'"39 But

this statement was made by the prosecutor, to reflect that he had checked the

box that the finding was with a firearm and not with a deadly weapon. It did not

constitute a new finding by the court.

       In sum, the propriety of the firearm enhancement is not properly before

this court.

                    STATEMENT OF ADDITIONAL GROUNDS

        In his statement of additional grounds, Thompson argues that he "should

have been afforded a new trial for the erroneous instruction" for accomplice




        38 Appellant's Opening Brief at 14; see also Appellant's Reply Brief at 2-4.

        39 Id. at 12 (quoting Report of Proceedings (Mar. 29, 2013) at 31).


                                          10
No. 70254-8-1/11



liability.40 He asserts that he can raise this issue under RAP 2.5(c) and RAP

1.2(a).41 He is mistaken.

         RAP 2.5(c) is permissive, both with respect to prior trial court action and

prior appellate court action. Here, Thompson has had the benefit of two prior

reviews by this court and prior opportunities to raise this issue then. He failed to

do so. Accordingly, we decline to exercise our discretion to address this new

issue.


         We affirm the judgment and sentence.



                                                            (M^-
WE CONCUR:




         40 Appellant's Statement of Additional Grounds at 2.

         41 id,

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