                                                                    COURT Or Ai'PcAL'o Ul'.
                                                                     STATE OF WASHINGTON

                                                                     2013 JUN 17 AM S^ 30
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                                No. 68250-4-1


                      Respondent,                   DIVISION ONE

         v.



JAMES ARTHUR BATTLE,                                UNPUBLISHED

                     Appellant.                     FILED: June 17. 2013




       COX, J. - James Battle appeals an order correcting the sentence he

received for delivery of cocaine. He contends the court's upward correction of

the statutory maximum violated double jeopardy principles. Because we adhere

to our decision in In re Personal Restraint of Hopkins,1 and because Battle had

no legitimate expectation of finality in his sentence after he collaterally attacked

it, we reject his double jeopardy claim. Battle's pro se arguments are beyond the

scope of the superior court's decision and the scope of our review. Accordingly,

we affirm.


       In 2007, a jury convicted Battle of delivery of cocaine. The court

sentenced him to 114 months confinement and 9 to 12 months of community

custody. The judgment and sentence listed the maximum term for the offense as

10 years. Battle appealed and this court affirmed.




       189 Wn. App. 198, 200-03, 948 P.2d 394 (1997).
No. 68250-4-1/2



       Battle subsequently filed several personal restraint petitions challenging

his conviction and sentence. In his most recent petition, Battle argued that the

combined term of 114 months and 9 to 12 months of community custody

exceeded the 10-year statutory maximum stated on his judgment and sentence.

The State pointed out that under RCW 69.50.408, Battle's prior drug offenses

doubled the statutory maximum to 20 years. The State therefore asked this court

to remand to correct the judgment and sentence. The Acting Chief Judge agreed

that Battle's prior offenses "automatically doubled the statutory maximum term for

the current offense as a matter of law" but dismissed the petition because he had

not shown that his sentence will exceed even the undoubted 10-year statutory

maximum.


       Battle sought discretionary review in the Washington Supreme Court. The

Supreme Court Commissioner concluded the judgment and sentence contained

a facial error because it imposed "a total term of confinement and community

custody that potentially exceeds the stated maximum sentence." But the

Commissioner rejected Battle's argument that he was entitled to a reduction of

his sentence to comport with the 10-year maximum stated on the judgment and

sentence:


             [Battle] urges that the doubling called for by RCW 69.50.408 is
      discretionary, and that here the superior court exercised its discretion
      against doubling. This argument is clearly meritless. The superior court
      retains its discretion to set a term within the standard range (which is not
      doubled), but the absolute maximum sentence that the court may impose




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No. 68250-4-1/3



         is automatically doubled. In other words, the statute creates a new
         statutory maximum.121
The Commissioner denied the motion for discretionary review "on the condition

that within 60 days of this ruling the State obtain and file in this court an amended

judgment and sentence stating the correct maximum sentence." Battle moved to

modify the Commissioner's ruling and a Department of the Supreme Court

denied his motion.

         The State then obtained an order from the superior court amending

Battle's judgment and sentence to reflect a statutory maximum term of 20 years.

Battle appeals that order.

                                   DOUBLE JEOPARDY

         Battle contends the upward correction of his statutory maximum violated

double jeopardy principles. We review alleged double jeopardy violations de

novo.3

         The double jeopardy clauses of our state and federal constitutions prohibit

multiple punishments for the same offense.4 Resentencing to increase an
erroneous sentence generally does not violate this prohibition,5 but resentencing
to increase a correct sentence does.6 Battle contends the maximum sentence

listed in his original sentence was correct and could not be increased without

violating double jeopardy. He acknowledges that his maximum sentence could


         2Brief of Respondent at 4-5.
         3State v. Jackman. 156 Wn.2d 736, 746, 132 P.3d 136(2006).
         4 State v. Mutch. 171 Wn.2d 646, 661, 254 P.3d 803, 814 (2011).
         5 Id at 666.
         6 State v. Hardestv, 129 Wn.2d 303, 310, 915 P.2d 1080 (1996).

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No. 68250-4-1/4



be doubled under RCW 69.50.408, but contends such doubling was

discretionary, not mandatory. Therefore, he concludes that his original sentence

was not erroneous and its correction violated double jeopardy. We disagree.

        Battle's interpretation of RCW 69.50.408 is at odds with our decision in In

re Personal Restraint of Hopkins.7 There, we concluded that RCW 69.50.408 is

not discretionary and "automatically doubles the statutory maximum sentence for

convictions under RCW 69.50[.]"8 We reached that conclusion after comparing
RCW 69.50.408 with other similar statutes and considering the policies reflected

in amendments to RCW 69.50.9 Battle asks us to revisit our holding in Hopkins,

arguing that our reasoning was flawed. We decline to do so for several reasons.

        First, in a case cited by the State but ignored by Battle, the supreme court

held that "RCW 69.50.408 doubles the maximum sentence."10 Comparing
RCW 69.50.408 with another statute, the supreme court found "strong evidence

that the legislature meant both statutes to have the same effect - the effect of

doubling the statutory maximum sentence."11 Although the court did not
expressly address whether the doubling of the maximum sentence is automatic

or discretionary, it cited Hopkins with approval and its language strongly supports

our holding in Hopkins that the doubling is automatic.12 Significantly, the


        789 Wn. App. 198, 200-03, 948 P.2d 394 (1997).
        8 Id at 203.
        9 Id. at 200-02.
        1d~in re Personal Restraint of Cruz. 157 Wn.2d 83, 90, 134 P.3d 1166 (2006).
        11 Id.
          12 See State v. Roy. 147 Wn. App. 309, 315, 195 P.3d 967 (2008) (citing Cruz and stating
that "[t]he maximum sentence available remained double the initial maximum sentence, whether
the judge chose to impose it or not").

                                              -4-
No. 68250-4-1/5



Supreme Court Commissioner's ruling in Battle's personal restraint petition,

which the supreme court declined to modify, relied on Cruz in concluding that the

statute "automatically" doubles a maximum sentence.

       Second, Battle's claim that Hopkins misinterprets the Legislature's intent

overlooks the presumption that the legislature is aware of judicial interpretations

of its enactments and that its failure to amend a statute following a judicial

interpretation indicates its acquiescence in that interpretation.13 The
Legislature's silence following Hopkins supports our adherence to it here.

        Battle argues alternatively that even if his original sentence was incorrect,

the court violated double jeopardy in correcting it because he had "a legitimate

expectation of finality in its terms." But a defendant who seeks review of a

sentence cannot claim an expectation offinality.14 Having employed the review
process of a personal restraint petition to request resentencing, Battle was on

notice that his sentence could be altered and even increased. Because Battle

had no legitimate expectation of finality, there was no double jeopardy violation

when the trial court corrected his maximum term.

        Battle has filed a pro se Statement of Additional Grounds for review in

which he collaterally attacks his conviction and sentence. These claims are




          13 Citv of Federal Way v. Koenig. 167 Wn.2d341, 348, 217 P.3d 1172 (2009) ("This court
presumes that the legislature is aware of judicial interpretations of its enactments and takes its
failure to amend a statute following a judicial decision interpreting that statute to indicate
legislative acquiescence in that decision.").
          14 See State v. Larson. 56 Wn. App. 323, 329, 783 P.2d 1093 (1989); Hardestv, 129
Wn.2d at 312-13.


                                              -5-
No. 68250-4-1/6



outside the scope of the superior court's order, which simply corrected the

judgment and sentence. They are therefore beyond the scope of our review.15
       We affirm the judgment and sentence.

                                                                 Cm^-
WE CONCUR:




*****,                   y-




       15 See State v. Parmelee. 172 Wn. App. 899, 905-06, 292 P.3d 799 (2013) (because
offender score issue was not considered by supreme court when it decided personal restraint
petition and remanded to the superior court on other grounds, and because offender score issue
was not considered by superior court on remand, issue was not properly before court of appeals
on appeal from remand); State v. Kilgore. 167 Wn.2d 28, 38-42, 216 P.3d 393 (2009) (where trial
court on remand from a first appeal exercises no independent judgment and simply corrects a
judgment and sentence, there are no new appealable issues to raise on appeal of the corrected
sentence) (citing State v. Barberio. 121 Wn.2d 48, 50-51, 846 P.2d 519 (1993)).

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