                                                                                                Mi-1- OF APPEAf
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTi
                                                                                            2015 JUL 28
                                               DIVISION II                                              AAM 8, 2S
                                                                                            S
 STATE OF WASHINGTON,                                                       No. 46066 -1 - II
                                                                                            S

                                    Respondent,


           V.




 DONNELL WAYNE PRICE,                                                  UNPUBLISHED OPE


                                    M

         MELNICK, J. —      Donnell Wayne Price appeals the reimposition of his exceptional sentence


during resentencing. He argues that the trial court erred by imposing an exceptional sentence based

on an aggravating factor not properly found by the jury and that it violated his right of allocution

by imposing      sentence   before allowing Price to      speak.   We disagree.   Price did not preserve for


review the validity of the special verdict instruction and any violation of Price' s right of allocution

was   harmless.    We affirm the exceptional sentence but remand for the ministerial correction of

scrivener' s errors in the judgment and sentence.


                                                      FACTS


          In 2006, the State charged Price with murder in the first degree while armed with a firearm

and unlawful possession of a firearm in the second degree. The State also alleged that the murder


was a crime of domestic violence, during which Price' s conduct manifested either deliberate

cruelty or intimidation of the victim.

          In 2007, a jury found Price guilty as charged and returned special verdicts finding that he

committed the murder while armed with a firearm and that his conduct manifested intimidation of

the   victim.'   The trial court imposed an exceptional sentence that added 60 months for each of the




 The    jury did not find   that Price   acted with   deliberate cruelty.
46066 -1 - II




two   special verdicts,    for   a   total sentence   of   494   months.    The trial court entered written findings


of fact and conclusions of law to support the exceptional sentence.


         Price appealed and the resulting decision set forth the facts supporting his convictions:

                  On September 3, 2006, Olga Carter called 911 to report a domestic violence
         incident   involving        her boyfriend, Donnell Price.         Carter told the 911 operator that
         Price had a gun. Police responded and arrived at Price' s home in Tacoma.


                  When the officers approached the house, they heard a man and woman
         arguing inside and then heard the man say something about flashing lights outside.
         They   then   saw   Price      come   to the door and step         outside.   An officer shined his
         flashlight   on   him   and announced "       Tacoma Police," but Price went back inside and
         slammed the door shut.


                  A few     seconds      later, the   police   heard   a woman scream.        Officers quickly
         approached the front and back doors and demanded that the occupants come out.
         When there was no response, they kicked in the front door and then heard a gunshot.
         The officers then continued to announce their presence and to call on the occupants
         to   come out of    the house, but there          was no response.      Price eventually came out
         through the front door after repeated police demands.


                  Police then entered the house and found Carter dead on the floor in the
         utility room. On a nearby table, police also found a handwritten note that contained
         Carter' s fingerprints, was in her handwriting, and was on paper torn from a
         notebook in her purse. The note read:




                  From: Olga Mommy
                  Mommy Luv
                  Mr. Price
                  Shot Me
                  Dead
                  He thought
                  I Fooled Around
                  A Gun
                  to my
                  Head.


         Carter had a daughter named AuBriana.


                  An autopsy confirmed that Carter died of a single gunshot wound. The fatal
         wound was a contact gunshot wound to her neck. Forensic evidence indicated that
         the gun had been placed against her neck pointed upward and that the bullet
         travelled through her throat, cervical             vertebrae,     spinal cord, and   brain.   Forensic




                                                                 2
46066 -1 - II




            evidence also showed that Price had gunpowder burns on his shirt and chest,
            indicating that he was holding Carter very close to him when the shot was fired.

State v. Price, noted at 153 Wn. App. 1038, 2009 WL 3260914, at * 1; see also Clerk' s Papers ( CP)

at 37- 39.


            The Price court rejected the two issues raised on appeal: Price' s assertions that the trial


court violated his right to a public trial and erred by admitting the victim' s handwritten note. 2009

WL 3260914, at * 3- 5; see also CP at 43, 47.


            In 2011, Price filed a personal restraint petition and challenged the wording of his special

verdict instruction, the validity of his offender score, and the seriousness levels listed in his

judgment and sentence. 2 Price argued that his prior convictions washed and were not properly part

of   his   offender score.       We rejected Price' s claim of instructional error but granted the petition in

part and remanded for resentencing so that the State could " provide all relevant documentation to

prove      Price'   s criminal   history   and   resulting   offender score."   CP at 84 ( Order Granting Petition in

Part in Case No. 42646 -3 - II, filed Oct. 9, 2012). We also remanded for correction of the erroneous


seriousness         levels listed for   each offense    in the judgment     and sentence.    See CP at 85 ( Order in


Case No. 42646 -3 - II).


            A new judge presided over the resentencing hearing because the original judge had retired.

The trial court granted defense counsel' s motion to withdraw and continued the hearing to allow

for the appointment of assigned counsel. When the hearing reconvened, the trial court summarized

its understanding of the issues before it:




2 Price' s instructional challenge was based on State v. Bashaw, 169 Wn.2d 133, 234 P. 3d 195
 2010), which the Washington Supreme Court overruled in State v. Nunez, 174 Wn.2d 707, 285
P. 3d 21 ( 2012). He has filed two other petitions that we have dismissed. See Order Dismissing
Petition, In re Pets. Restraint of Price, No. 43697 -3 - II (Wash. Ct. App. Oct. 4, 2012); Order
Dismissing, Petition, In re Pers. Restraint ofPrice, No. 47380 -1 - II (Wash. Ct. App. Mar. 4, 2015).

                                                                 3
46066 -1 - II




                   As I    understand   it from the Court    of   Appeals' decision ... [   the case] was .

           remanded to review the offender score and just sentencing if the offender score
         was wrong, as I understand it, and the issue being whether some prior offenses that
         Mr. Price had had washed.


Report of Proceedings ( RP) at 14.


         During the hearing, it became apparent that the prosecutor needed an additional document

to   establish   Price'   s offender score.    Before continuing the hearing, the trial court allowed three

members of the victim' s family to speak.

          When the resentencing hearing resumed, the trial court determined that the State' s evidence

supported       the previously    calculated   offender   score    of   four.   After two other members of the


victim' s family gave statements, the prosecutor outlined some of the facts of the crime that had

been revealed at trial. The prosecutor argued that the trial court should impose the same sentence

that Price received in 2007.


          The defense responded by directing the trial court' s attention to the special verdict form

that had supported the " intimidation of the victim" aggravating factor. That verdict form provided:

                    We, the jury, having found the defendant guilty of Murder in the First
          Degree or Murder in the Second Degree; return a special verdict by answering the
          following question from the court:
                    QUESTION:         During the commission of this offense, did the defendant' s
          conduct manifest intimidation of the victim?


CP at 10. Defense counsel argued that this form showed that the jury had not found that the murder

was a crime of domestic violence, which was required to support the aggravating factor in question.

As a consequence, counsel maintained that the trial court could not reimpose an exceptional

sentence without violating Price' s rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

2531, 159 L. Ed. 2d 403 ( 2004).


          The prosecutor argued that the issue regarding the special verdict instruction was beyond

the scope of the hearing. The trial court ruled as follows:


                                                            il
46066 -1 - II




                         Well, with respect to the issue of the exceptional sentence, the jury did find
               by special verdict that there was an aggravating circumstance, so I think Judge
               Fleming did have the ability, if he wished, to impose an exceptional sentence.

RP at 76.


               The trial court then stated that it saw no reason to depart from Price' s original sentence and


sentenced Price to 374 months, plus 60 months for the weapon enhancement and 60 months for

the aggravating           factor. "       I' m simply adopting what Judge Fleming, who heard the trial and knows

it   a   lot better than I did         and was     there,    did." RP   at   78.   The court added that it would impose the


same legal financial obligations.


               When defense counsel observed that the trial court had made its ruling without providing

Price      with    his   right    to   allocute,   the   court apologized and        invited Price to     speak.   The trial court


noted that the sentence was not yet final, Price then complained of problems in receiving his legal

paperwork and reasserted his allegation of a public trial violation. Price also referred to his status

as a minister and a Mason, the pain he had inflicted on his family, and the fact that resentencing

was taking place on his wedding anniversary.

               The trial court again apologized for not hearing Price earlier, stated that nothing Price said

had       changed        the    court' s   mind,   and    imposed the        sentence      it had described   earlier.   After the


prosecutor stated that " the record should reflect the Court' s judgment was not final at the point in

time      when     the Court       allowed     Mr. Price to    allocute,"    the   court   declared, " It' s still not final because


I haven' t       signed    it   yet....      After hearing him, I reconsidered it and reimposed it, and I apologize

for      not   hearing from him            before I   gave   my initial inclination." RP at 85.


               Price appeals his resentencing.




                                                                        5
46066 -1 - II




                                                       ANALYSIS


I.       REVIEW OF EXCEPTIONAL SENTENCE


         Price argues on appeal that the trial court erred by imposing an exceptional sentence based

on an   aggravating factor that          was not   properly found         by    the   jury. See Blakely, 542 U.S. at 303

 unless admitted by defendant, facts supporting exceptional sentence must be submitted to jury

and proved      beyond       reasonable    doubt). The State responds that this issue has not been preserved


for review.


         We begin          our analysis with   RAP 2. 5(   c)(   1),   which 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.


           This rule does not revive every issue or decision which was not raised in an earlier

appeal."      State   v.   Barberio, 121 Wn.2d 48, 50, 846 P. 2d 519 ( 1993).                       RAP 2. 5( c)( 1) allows both


trial and appellate courts discretion to revisit an issue on remand that was not the subject of the


earlier appeal.       State   v.   Kilgore, 167 Wn.2d 28, 38, 216 P. 3d 393 ( 2009). "                        Only if the trial court,

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

become an       appealable question."          Barberio, 121 Wn.2d             at   50.   And, even if it is appealable, the


appellate court still        retains discretion to   review       it   under   RAP 2. 5(    c)(   1).     Barberio, 121 Wn.2d at


51.


         In Barberio, the defendant did              not challenge        his   exceptional             sentences on appeal.      121


Wn.2d    at   49.     At resentencing, he challenged for the first time the aggravating factors supporting

his exceptional sentence. Barberio, 121 Wn.2d at 49. The trial court declined to address the issue

and reimposed          the same      exceptional sentence.         Barberio, 121 Wn.2d                  at   50- 51.   The trial court




                                                                 0
46066 -1 - II




emphasized that neither new evidence nor the Court of Appeals opinion merited reexamination of


Barberio' s sentence. Barberio, 121 Wn.2d at 51- 52.


         Price did not raise the Blakely challenge to his special verdict instruction during his trial,

in his first direct appeal, or in any of his three subsequent personal restraint petitions. During his

resentencing, the trial court allowed the defense to make its record concerning the alleged Blakely

error but did not rule on its merits. See State v. Parmelee, 172 Wn. App. 899, 908, 292 P. 3d 7.99

 where resentencing court allowed defense to make a record and allowed the State to respond but

declined to     consider   the issue, the issue was     not   properly before the Court   of   Appeals),    review




denied, 177 Wn.2d 1027 ( 2013).            The trial court instead stated that the jury found an aggravating

circumstance and that the prior judge had the ability to impose an exceptional sentence. Because

the trial court declined to reach the merits of Price' s challenge to the special verdict instruction,

we decline to do so as well. Kilgore, 167 Wn.2d at 40; Barberio, 121 Wn.2d at 50- 51.

II.      RIGHT OF ALLOCUTION


         Price contends that the trial court violated his right of allocution by imposing sentence

before giving him     a    chance to   speak. "   Allocution is the right of a criminal defendant to make a


personal   argument    or      statement   to the court before the   pronouncement   of sentence."         State v.


Canfield, 154 Wn.2d 698, 701,               116 P. 3d 391 ( 2005).      This right is guaranteed by RCW

9. 94A.500( 1),   and we review an alleged violation of this statutory right de novo. State v. Hatchie,

161 Wn.2d 390, 405, 166 P. 3d 698 ( 2007).


         The State contends that Price waived the issue because he did not object by requesting

resentencing before        a   different judge.   See State v. Aguilar -Rivera; 83 Wn. App. 199, 200, 920

P. 2d 623 ( 1996) (   violation of right of allocution entitles defendant to new sentencing hearing




                                                          7
46066 -1 - II.




before different judge).        There is no authority requiring a defendant to request this remedy in order

to preserve this issue for review.

          Here, the trial court noted its intention to reimpose Price' s original sentence before defense

counsel    interrupted to    state   that her   client wanted     to   speak.   The trial court then apologized and


allowed    Price to   make      a    statement.    When Price finished, the trial court stated that Price' s


comments did not alter the court' s original inclination. Price' s objection sufficiently preserved the

allocution issue for review. .


          It is evident that the trial court did not precisely adhere to statutory procedure in sentencing

Price. RCW 9. 94A. 500( 1);           see In re Pers. Restraint ofEcheverria, 141 Wn.2d 323, 336, 6 P. 3d

573 ( 2000) ( trial    court     should "   scrupulously follow"          the statutory requirements by directly

addressing defendants during sentencing, asking whether they wish to say anything in mitigation

of sentence, and allowing them to make arguments as to the proper sentence before imposition of

sentence). 3 Price argues that the trial court' s actions constitute error that require resentencing

before a different judge, while the State maintains that any error was harmless. We agree with the

State.


          Washington decisions differ on whether a violation of the right of allocution can constitute


harmless    error.   In State   v.   Delange, 31 Wn.       App.   800, 801, 644 P. 2d 1200 ( 1982), the trial court


noted its intention to accept the State' s recommendation and sentenced the defendant to 10 years

before defense counsel objected that the court had denied the defendant her right of allocution.

When the defendant stated that she should have been heard before she was sentenced, the court




3 Echeverria referred to former RCW 9. 94A. 110, which was recodified as RCW 9. 94A.500 in
2001.    141 Wn. 2d    at   336; LAWS OF 2001,       ch.   10, § 6.
46066 -1 - II




stated that she hadn' t yet been sentenced and invited her to speak. Delange, 31 Wn. App. at 801.

The trial court then imposed a 10 -year sentence. Delange, 31 Wn. App. at 802.

           In Delange, the trial court had not entered its formal sentence before allowing the defendant

to   allocute,   thus    she exercised     her   right       of   allocution     before sentencing.      31 Wn. App. at 802.

 Although that right should have been afforded before the court revealed its intention with respect

to sentence, its failure to do so was inadvertent. When defense counsel brought this to the court' s

attention,    defendant     was     immediately       given       the opportunity to       speak."   Delange, 31 Wn. App. at

802- 03.       The Delange court determined that there was no need to reverse and remand for

resentencing. 31 Wn. App. at 803.

           A subsequent decision rejected the State' s claim of harmless error. State v. Crider, 78 Wn.

App. 849, 860- 61, 899            P. 2d 24 ( 1995).     In Crider, the defendant filed a notice of appeal based on


a violation of     his    right of allocution         immediately        after   the trial   court entered     judgment.      78 Wn.


App. at. 853. At the trial court' s invitation, the defendant then made a statement, but the court was
not swayed. ,     Crider, 78 Wn.        App.     at   853.    The Crider         court concluded     that "[   a] pplying harmless

error in the face of a total failure of allocution prior to the imposition of sentence would severely

erode a right which        the State    concedes       to be fundamental."              78 Wn. App. at 861. The Crider court

vacated the sentence and remanded for resentencing. 78 Wn. App. at 861.

           In Aguilar -Rivera, the          trial      court      imposed        an    exceptional   sentence,     legal financial


obligations,      12   months of      community        supervision with conditions, and               then     stated, "   That is the


sentence of      the    court."    83 Wn.    App.      at   200- 01.     When the trial court directed the defendant to


come forward for fingerprinting, defense counsel pointed out that the court had not permitted his

client   to   allocute.   Aguilar -Rivera, 83          Wn. App.        at 201.        The trial court acknowledged that it had


just " skipped over" the allocution and listened to the defendant' s statement. Aguilar -Rivera, 83




                                                                     9
46066 -1 - II



Wn.    App.    at   201.    The trial court then adhered to its initial sentence. Aguilar -Rivera, 83 Wn. App.

at   201.    On appeal, the Aguilar -Rivera court rejected Delange and held that " when the right of


allocution is inadvertently omitted until after the court has orally announced the sentence it intends

to impose, the remedy is to send the defendant before a different judge for a new sentencing

hearing." 83 Wn. App. at 203.

            In State   v.   Gonzales, 90 Wn.    App.   852, 853- 54, 954 P. 2d 360 ( 1998), the court employed


a harmless error test where the defendant urged the trial courtto proceed with sentencing and asked

for the recommended low-end sentence, which the trial court then imposed. The Gonzales court

noted that although the trial court had erred by failing to allow the defendant to speak on his own

behalf, " to    conclude that the denial of his right to allocution was prejudicial under the facts of this

case would place            form   above substance."   90 Wn. App. at 855.

            The facts here are closer to those in Delange than those of the other cases cited, and we see


no reason to reject the application of harmless error. The trial court' s inadvertent failure to allow

Price to speak before announcing its intended sentence constitutes harmless error. The trial court

had not yet pronounced the final sentence, and after Price spoke, the court observed that the


sentence was not yet final. The trial court listened to Price and afterwards exercised its discretion

in sentencing him.             We decline to find prejudicial error on the facts presented and affirm the


exceptional sentence imposed during the defendant' s resentencing.

III.        Scrivener' s Errors


            The State points out that the defendant' s judgment and sentence contains inconsistent

references to his offender score and sentencing ranges. Paragraph 2. 3 misstates his offender score

as one and provides corresponding sentence ranges for each conviction. The trial court determined

that Price' s offender score was properly calculated as four and that his sentencing ranges were



                                                            10
46066 -1 - II



those reflected in paragraph 4. 12; Le, 341 to 434 months for count I ( including the 60 -month

enhancement), and      12+ to 16   months   for   count   II. We remand for a ministerial correction of the


scrivener' s errors in paragraph 2. 3 of Price' s judgment and sentence. State v. Moten, 95 Wn. App.

927, 934- 35, 976 P. 2d 1286 ( 1999).

         We affirm the exceptional sentence but remand for the ministerial correction of the

scrivener' s errors identified in this opinion:


         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 2. 06. 040,

it is so ordered.




                                                                            a




                                                                      Melnick, J.


We concur:




         Johanson, C. J.




         F; igen, J.




                                                          11
