                                                                                               FILED
                                                                                     COURT OF APPEALS
                                                                                          DIVIISIT Ix

                                                                                    2013 AUG         AM 10: 28
    IN THE COURT OF APPEALS OF THE STATE OF W.                                                 p13   SH911d   01

                                               DIVISION II
                                                                                           DEP TY
STATE OF WASHINGTON,                                                   No. 42286 7 II
                                                                                 - -


                                    Respondent,

         V.



THOMAS RAY MOORE,                                                UNPUBLISHED OPINION




         PENOYAR, J. —Thomas         Ray Moore appeals his exceptional sentence, arguing that he was

entitled to a shorter sentence on remand given his reduced offender score. Moore was initially

found guilty of eight counts of witness tampering and one count of first degree assault of a child.

Though the jury found two aggravating factors, the trial court sentenced Moore to a 378 month
standard range sentence.           After he successfully appealed seven witness tampering charges,

Moore's offender score was lowered to two. At resentencing, the court imposed the same 378

month sentence as an exceptional sentence.

          On appeal, Moore argues that (1) presumption of vindictiveness applies because the
                                          the
resentencing court did not reduce his sentence and (2) resentencing court violated his rights
                                                      the

under Blakely v. Washington, 542 U. . 296, 304, 124 S. Ct. 2531, 159 L.Ed. 2d 403 (2004),
                                  S                                                     by

improperly relying      on   its   own   findings of fact. Because the court did not increase Moore's

sentence on remand and because the court's findings were merely a reiteration of the facts that

supported the jury's aggravating circumstances findings, we hold that the presumption of
vindictiveness does not apply and that the resentencing court did not violate Moore's rights

under Blakely. We affirm Moore's exceptional sentence and remand to correct the scrivener's
error   in the   judgment   and sentence form.
m: a -
 r    I



                                                 FACTS


         A jury found Thomas Moore guilty of one count of first degree assault of a child and

eight   counts of witness   tampering. The court sentenced him to 378 months, a standard range

sentence   given   his offender   score   of nine.   On appeal, this court overturned seven witness

tampering counts. With a reduced offender score of two,Moore reappeared before the same trial
court for resentencing. At resentencing, the court imposed an exceptional sentence of the same

length of time as the original standard sentence, 378 months.
                                               ANALYSIS


I.       SCRIVENER's ERROR


         Moore argues, and the State concedes, a scrivener's error on his judgment and sentence

form. The remedy for clerical or scrivener's errors in judgment and sentence forms is remand to

the trial court for correction. In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701, 117 P. d
                                                                                            3

353 (2005)citing CrR 7. ( RAP 7. (
           (         a)); 2
                      8 see   e).

         Moore's judgment and sentencing form correctly states a standard sentence of 147
months and incorrectly states an additional term of 237 months, for a total of 384 months. The

same page states that the "[ ctual number of months"of confinement is 378. Clerk's Papers at
                          a]
147. At the sentencing hearing, the court ordered a 378 month sentence. The State concedes an

error in the judgment and sentencing form and asks that the case be remanded for correction. We

accept the State's concession and remand to the trial court for correction of Moore's judgment
and sentence to reflect a standard sentence of 147 months and an additional term of 231 months,

totaling 378 months. Accordingly, we analyze Moore's remaining claims in light of the correct
378 month sentence.




                                                      2
42286 7 II
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lI.    VINDICTIVENESS


       Moore next argues that the presumption of vindictiveness applies here because the trial

court did not reduce his sentence on remand despite his reduced offender score. Because the trial

court did not increase Moore's sentence on remand, we hold that the presumption of

vindictiveness does not apply here.

       The due process clause of the fourteenth amendment to the United States Constitution

proscribes increased sentences motivated by a judge's vindictive retaliation after reconviction

following a successful appeal."
                              State v. Franklin, 56 Wn. App. 915, 920, 786 P. d 795 (1989)
                                                                            2

citing North Carolina v. Pearce, 395 U. .711, 89 S. Ct. 2072, 23 L.Ed. 2d 656 (1969)).
                                      S                                             Under
Pearce,   a   more    severe   sentence   on   remand     establishes   a rebuttable presumption of

vindictiveness.      Franklin, 56   Wn.   App.   at   920.   Washington courts have held that the

presumption of vindictiveness does not arise when the resentencing court does not impose a
more severe sentence. Franklin, 56 Wn. App. at 920; State v. Larson, 56 Wn. App. 323, 326 28,
                                                                                          -

783 P. d 1093 (1989).Even if a presumption of vindictiveness does arise, courts have held that
     2
it may be rebutted by specific nonvindictive reasons for the sentence, such as aggravating
factors. State v. Parmelee, 121 Wn. App. 707, 712, 90 P. d 1092 (2004);
                                                       3              State v. Havens, 70

Wn. App. 251, 258 59, 852 P. d 1120 (1993).
                  -        2

       Moreover, neither case law nor the Washington Sentencing Reform Act ( RA)indicates
                                                                           S
that a sentence must be reduced after the offender score is reduced. State v. Barberio, 66 Wn.

App. 902, 907, 833 P. d 459 (1992),
                    2             affirmed by 121 Wn. d 48, 846 P. d 519, 1993).In
                                                    2            2        (




                                                      3
42286 7 II
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Barberio,the defendant's offender score was reduced by one point and, at resentencing, the court

imposed the same sentence. 66 Wn. App. at 903. The court rejected Barberio's argument that

as a matter of law, the trial court was required to reduce the exceptional sentence in light of the

reduced offender score and reduced standard range."Barberio, 66 Wn. App. at 906.

       Here, the resentencing court did not impose a more severe sentence on remand; it

imposed the same 378 month sentence. Thus, the presumption of vindictiveness does not apply.

Even if the presumption did apply, it is rebutted by specific nonvindictive reasons for the new
sentence.    When it resentenced Moore, the court indicated that the exceptional sentence was

supported by the two aggravating factors the jury found.

III.   BLAKELY V. WASHINGTON


       Finally, Moore argues the trial court erred by finding facts at his resentencing and thus
violating his rights under Blakely. Because the court relied on the aggravating factors found by

the jury to impose an exceptional sentence, we hold that it did not violate Moore's rights under
Blakely.

        Under Blakely, every defendant has the right to insist that the prosecutor prove to a jury
                       "
all facts legally essential to the punishment." 542 U. . at 313 (citing Apprendi v. New Jersey,
                                                     S
530 U. . 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000)).
     S                                                    The              Washington legislature

responded to Blakely by creating a two step sentencing process. First, the jury must determine
                                       -
whether the State has proven any statutorily defined aggravating circumstances beyond a

reasonable doubt. RCW 9. ).jury finds the aggravating circumstances, the court
                      537( 4A. If the
                         3
                         9

may sentence the offender up to the maximum term allowed for the underlying conviction if it
finds the facts alleged and found were sufficiently substantial and compelling to warrant an
                                                                                                829
exceptional   sentence. RCW   537( 4A.State v. Hale, 146 Wn. App. 299, 306, 189 P. d
                              9. 6);
                                 9                                               3
42286 7 II
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2008).Whenever the trial court imposes a sentence outside the standard range, it " hall set forth
                                                                                 s
the   reasons   for its decision in written   findings   of fact and conclusions of law." RCW


535.
9.94A.

        Here, the jury found two aggravating factors beyond a reasonable doubt: (1) Moore
                                                                                   that

committed first degree assault of a child when he knew or should have known that the victim

was a particularly vulnerable victim or was incapable of resistance because of his extreme youth

and (2)
      that, as the victim's father, Moore abused this trust when he committed the crime. Based
on those factors, the resentencing court imposed an exceptional sentence.

         As required by RCW 9. the court entered the following findings in support of
                            535,
                             94A.

the exceptional sentence: (1)the victim was four years old at the time of the assault; ( )the
                                                                                       2

victim was completely dependent on Moore for warmth, food, hygiene and love; 3) victim
                                                                             ( the

was completely defenseless at the time of the assault; 4) victim was incapable of escaping;
                                  .                    ( the
5)the victim was incapable of getting help; 6)the victim was not shown any mercy by the
                                            (
defendant at the time of the assaults; and (7)Moore betrayed the victim's trust as his father and
inflicted   multiple extraordinary injuries. These findings are merely reiterations of the jury's

findings that the victim was particularly vulnerable and that Moore abused the victim's trust.

Accordingly, the resentencing court did not find new facts at resentencing and did not violate

Moore's rights under Blakely.




1 Former RCW 9.
             535( 007)was in effect at the time Moore committed assault. The
                2
                94A.
legislature has since amended RCW 9. many times. None of the amendments involved
                                  535
                                   94A.
substantive changes affecting our analysis. Therefore, we cite to the current version of the
statute.
                                                   5
42286 7 II
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       We affirm Moore's exceptional sentence and remand to correct the scrivener's error in

the judgment and sentence form.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We concur:




       Hunt, J.



   4f'            J.'
   B/en,
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