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                  UPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                         )
                                             )      No. 89302-1
                       Petitioner,           )
                                             )
      v.                                     )      EnBanc
                                             )
JOHN A. JONES III,                           )
                                             )
                       Respondent.           )
                                             )      Filed         NOV 2 6 2014


      C. JOHNSON, J.-This case involves whether a trial court must give effect

to the provision in RCW 9.94A.530(2) that permits both parties to present

additional relevant evidence of criminal history at resentencing following remand

from appeal or collateral attack. In this case, the trial judge concluded that the "no

second chance" rule we announced in State v. Ford1 was based on constitutional

principles of due process and therefore the legislature was not free to alter this rule.

The Court of Appeals affirmed. Because the "no second chance" rule was based on

judicial economy, not due process, we hold that the legislature was within its




       1
           State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999).
State v. Jones (John A., III), No. 89302-1


authority to alter our rule and that the statutory remand provision controls. We

reverse.

                             FACTS AND PROCEDURAL POSTURE

       John A. Jones III's 2008 criminal conviction for second degree assault is not

in dispute. 2 At his first sentencing hearing, the State presented evidence of several

California convictions, including one count of murder with a firearm, two counts

of attempted murder with a firearm, and one count of assault with a firearm. The

trial court calculated Jones's offender score as 6 by including the murder and

attempted murder convictions, and sentenced Jones to an exceptional sentence of

120 months. Jones appealed, and the Court of Appeals vacated his sentence

because the trial court had failed to perform a comparability analysis of his

California convictions. On remand for resentencing, the State supplemented the

record, over Jones's objection, with new evidence of Jones's murder and attempted

murder convictions and an additional drug conviction. After performing a

comparability analysis on these convictions, the trial court recalculated Jones's

offender score as 7 (now with the additional drug conviction). The court again

sentenced Jones to an exceptional sentence of 120 months.




        2
         ·A special verdict also found that the offense was committed within the sight or sound of
the victim's or defendant's minor child, which permits imposing an exceptional sentence.


                                                2
State v. Jones (John A., III), No. 89302-1


       .Tones appealed again. The Court of Appeals vacated his sentence, this time

becausethe State failed to establish Jones's convictions by a preponderance of the

evidence when it presented a copy of a probation report, which the State had

represented to the court as being a plea colloquy. At the third sentencing hearing,

at issue here, the State offered an uncertified copy of a California plea colloquy in

order to establish Jones's prior convictions. It also moved for a short continuance

to obtain a certified copy. The trial court, however, denied the motion, concluding

that based on our holdings in State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113

(2009) and State v. Hunley, 175 Wn.2d 901,287 P.3d 584 (2012), a trial court

could not permit the State to supplement the record on resentencing. Verbatim

Report of Proceedings (Second Resentencing) at 9 ("In reading Mendoza as well as

Hunley, it's my conclusion that the State, in this case, does not get another bite at

the apple."). Without the California convictions, Jones's offender score was

calculated as 1 and he was sentenced to an exceptional sentence of 60 months. A

few days later, the State filed a certified copy of the plea transcript that allegedly

establishes the comparability of the California convictions.

        The State appealed. In affirming the trial court, the Court of Appeals

adhered to the "no second chance" rule we announced in Ford-that the State may

not offer n.ew evidence at sentencing when the defendant raised an objection. The



                                             3
State v. Jones (John A., 11(), No. 89302-1


State, however, argued that the 2008 amendments to RCW 9.94A.530, which were

made in direct response to our decision in Ford, permit the State to offer new

evidence upon remand, regardless of defense objection. The Court of Appeals

disagreed. It held it was "not in a position to declare that the 'no second chance'

rule set forth in Ford is no longer in effect. Once the Supreme Court has decided

an issue of state law, that interpretation is binding on all lower courts until it is

overruled by the Supreme Court." State v. Jones, noted at 175 Wn. App. 1074,

2013 WL 4069516, at *6 (citing State v. Gore, 101 Wn.2d 481, 487-88, 681 P.2d

227 (1984)). Instead, it held that "the State must first convince the Supreme Court

that it lacked a constitutional basis for establishing the contrary rule in Ford."

Jones, 2013 WL 4069516, at *6. We granted review. State v. Jones, 179 Wn.2d

1008, 316 P.3d 494 (2014).

                                     STANDARD OF REVIEW

        This case challenges the legal conclusion that the legislature lacks the

authority to overrule Ford's "no second chance" rule because the rule is based on

ccmstitutional principles of due process. We review such conclusions de novo.

State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).




                                             4
 State v. Jones (.John A., III), No. 89302··1


                                                ANALYSIS

         The legislature has plenary authority over sentencing. See State v. Benn, 120

 Wn.2d 631, 670, 845 P.2d 289 (1993). Under this authority, it passed the

 Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, which guides

 sentencing discretion through the SRA's detailed statutory procedures. The

 legislature may also validly amend these procedures in response to judicial

., interpretation, except when such judicial interpretation is based on the constitution.

 This is because ''[t]he legislature may change a statutory interpretation, but it

 cannot modify or impair a judicial interpretation ofthe constitution." Hunley, 175

 Wn.2d at 915 (citing Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 497, 585 P.2d

 71 (1978)). In ruHng that it could not permit the State to present additional

 evidence of Jones's California convictions on remand, the trial court necessarily

 c~~mcluded    that the legislature lacked authority to change the "no second chance"

 rule we announced in Ford because the rule was based on constitutional principles

 of due process.

         In Ford, we held that an unpreserved sentencing error may be raised for the

 first time upon appeal because sentencing can implicate fundamental principles of

 due   pro~ess   if the sentence is based on information that is false, lacks a minimum

 indicia ofreliability, or is unsupported in the record. Ford, 137 Wn.2d at 481. We



                                                    5
 State v. Jones (.John A., Ill), No. 89302-1


 then addressed how the parties would proceed on remand. We stated that "[i]n the

 normal case" we would hold the State to the existing record. Ford, 13 7 Wn.2d at

  485. However, because the defendant in Ford had not objected and put the State

  '~on   notice as to any apparent defects," we permitted the State to prove the disputed

  convktions with additional evidence on remand. Ford, 137 Wn.2d at 485. In

  crafting this rule, we reasoned it would both preserve the purpose of the SRA to

,:, impose fair sentences on the basis of provable facts and also provide the proper

  disincentive for defendants who purposefully fail to object in the hope of reversal

  by an appellate court. Ford, 13 7 Wn.2d at 486.

           Ford created a framework for analyzing when the State would be permitted

  to present additional evidence on remand: if the defendant had objected, the State

  would be limited to the record it had previously established; if the defendant had

  not objected,
        .      .
                the State
                     .    would be permitted to present additional evidence. For

  example, we foUowed the "no second chance" rule in State v. Lopez, 147 Wn.2d

  515,521,55 P.3d 609 (2002), holding that the State was limited to the existing

  record because the defendant had objected. By contrast, in Mendoza we allowed

  the State to supplement the record at resentencing because the defendant did not

  object. Mendoza, 165 Wn.2d at 930. 3

  -------~         ·--
           3
           Mendoza was argued just months after the 2008 amendments became effective and was
  decided in 2009. However, the sentencing at issue in that case occurred in 2006. Although we


                                                6
State v. Jones (John A., III), No. 89302-1


       But the "no second chance" rule cannot be viewed as constitutionally based.

Our later case law recognized this and instead focused on what constitutes notice.

For example, in Bergstrom, we allowed the State to provide additional evidence on

remand because oftli:e ''unique circumstances" ofthe case. State v. Bergstrom, 162

Wrt.2d 87, 98, 169 P3d 816 (2007) (holding that the State was not on notice when

defense counsel acknowledged criminal history over defendant's explicit

objection). The dissent in Bergstrom, however, argued that the State was put on

notice by the defendant's objection. Bergstrom, 162 Wn.2d at 100 (Alexander,

C.J., dissenting). And in In re Personal Restraint of Cadwallader, 155 Wn.2d 867,

123 P.3d 456 (2005), we held that the State was not permitted to introduce new

evidence on remand of a prior conviction, under the peculiar facts of that case,

even though the defendant did not object. Justice Bridge, in her dissent, remarked

that "the legislature would likely not endorse the majority's decision to prohibit

evidence of Mr. Cadwallader's 1985 conviction on remand." Cadwallader, 155

Wn.2d at 883 (Bridge, J., dissenting). In neither case did the opinions identify a

specific constitutional basis in analyzing the issues.




discussed the 2008 amendments in a different context, we never addressed the remand provision
at issue here. We disapprove of Mendoza to the extent that it could be read as reaffirming the "no
second chance" rule as supplanting the remand provision.


                                                7
State v. Jones (John A., Ill), No. 89302-1


     · Justice Bridge's remarks would prove prophetic. In 2008, the legislature

amended several sections of the SRA, including RCW 9.94A.530. Its intent was

clear:

                 Given the decisions in In re Cadwallader, 155 Wn.2d 867
           (2005); State v. Lopez, 147 Wn.2d 515 (2002); State v. Ford, 137
           vVn.2d472 (1999); and State v. McCorkle, 137 Wn.2d 490[, 973 P.2d
         . 461] (1999), the legislature finds it is necessary to amend the
           provisions in RCW 9.94A.500, 9.94A.525, and 9.94A.530 in order to
           ensure that sentences imposed accurately reflect the offender's actual,
           complete criminal history, whether imposed at sentencing or upon
           resentencing.

LAWS OF      2008, ch. 231, § 1.

          In relevant part, RCW 9.94A.530(2) was amended to read, "On remand for

resentencing following appeal or collateral attack, the parties shall have the

opportunity to present and the court to consider all relevant evidence regarding

criminal history, including criminal history not previously presented." LAWS OF

2008, ch. 231, § 4.

          The amended ·statute provided for three provisions relevant here. First, RCW

9. 94A. 500( 1) provided in part that " [a] criminal history summary relating to the

defendant from the prosecuting authority or from a state, federal, or foreign

governmental agency shall be prima facie evidence of the existence and validity of

the convictions listed therein." Second, RCW 9.94A.530(2) makes the defendant's




                                              8
State v. Jones (John A., Ill), No. 89302-1


failure to object to a criminal history summary an acknowledgement. 4 Third, and at

issue in this case, RCW 9.94A.530(2) also permits the parties to present "all

relevant evidence regarding criminal history, including criminal history not

previously presented."

        We addressed these revisions and invalidated two provisions of the 2008

amendments because they undermined the very constitutional principles of due

process that were at issue in Ford. In llunley, the State presented an unsworn

[~tatem~mt   from the prosecuting attorney summarizing Hunley's criminal history, to

which the defendant did not object. On the basis of this summary, the trial court

calculated Hunley's offender score. We began our analysis by reaffirming the

fundamental holding of Ford that the State bears the burden of proving prior

convictions at sentencing by a preponderance of the evidence. Hunley, 175 Wn.2d

at 909·-1 0 (citing Ford, 137 Wn.2d at 479-80). We held that two provisions of the

2008 ar;nendments to the SRA impermissibly shifted or relieved the burden of

proof from the State and concluded that those provisions were unconstitutional.

Specifically, we found that RCW 9.94.500(1) that permits a criminal history



        4
         "In determining any sentence other than a sentence above the standard range, the trial
couit may rely on no rriore information than is admitted by the plea agreement, or admitted,
acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW
9.94A.537. Acknowledgment includes not objecting to information stated in the presentence
reports and not objecting to criminal history presented at the time of sentencing."


                                                9
State v. Jones (John A., Ill), No. 89302-1


summary to constitute prima facie evidence of the existence and validity of prior

convictions; was unconstitutional as applied. Because ''criminal history summary"

is not defined in the statute, we recognized that there could be a set of

circumstances in which this provision could be constitutionally applied. Hunley,

175 Wn.2d at 916~17. However, we held that the provision in RCW 9.94A.530(2)

that permits the defendant's failure to object to a criminal history summary to be

~onsidered    an acknowledgement was unconstitutional on its face because it

impermissibly relieved the State of its burden. Hunley, 175 Wn.2d at 917. We did

not address the remand provision at issue here .

         .Although Ford controlled our decision in Hunley to invalidate two sections

of the 2008 amendments to the SRA because those provisions implicated due

proces£, Ford does not control our resolution of this case. The provisions we
   '             .

invalidated in Hunley are distinguishable. We invalidated those provisions because

t~ey    relieved, shifted, or removed the State's burden, implicating due process

principles that established that the State must prove a defendant's prior convictions

~y     the preponderance of the. evidence. To meet its burden, the State must produce

evidence: it cannot rely on presumptions or the defendant's silence. But due

process does not prohibit the State from presenting additional evidence in order to

meet its burden if it~ prior evidence fails. Thus, the remand provision at issue here



                                             10
State v. Jones (John A., III), No. 89302-1


does norimplicate chie process or affect the State's burden to produce evidence.

Rather, the legislature has provided that both parties have the opportunity at any

sentencing hearing to present evidence "in order to ensure that sentences imposed

accurately reflect the offender's actual, complete criminal history, whether

imposed at sentencing or upon resentencing." LAWS OF 2008, ch. 231, § 1.

       The holding in Ford was the product of judicial economy and fairness,

meant to balance competing interests of accuracy and efficiency. In most cases,

there is little diffi.culty for the State to prepare an accurate criminal history for the

sentencing court and it presumably has that history in mind when it makes the

charging decision. The "no second chance" rule was meant to encourage the State

to be fully prepared at the original sentencing in order to avoid costly appeals and

resentencing hearings. Although sentencing courts retain the authority to reject the

State's proof of a defendant's criminal history, in those cases where relief is

ordered in an appellate proceeding and the case remanded, such as occurred here,

under the statutory remand provision both parties have the opportunity to present

any evidence relevant to ensure the accuracy of the criminal history. Because

ensuring the accuracy of the criminal history does not implicate due process, the

legislature acted consistent with its plenary authority over sentencing in enacting

the statutory remandprovision.



                                             11
State v. Jones (John A., III), No. 89302-1


                                             CONCLUSION

       We hold that the statutory remand provision in RCW 9.94A.530(2) controls

the question whether the parties may present additional evidence on remand. We

reverse and remand for resentencing consistent with this opinion.




WE CONCUR:




                                                 12
