                                                                                        FILED
                                                                                   COURT OF APPEAI v
                                                                                       0? TI
                                                                                        IS1t1%%

                                                                                  2013 JUN -4   All 8 56

                                        STATE BE WASH INGTO14
     IN THE COURT OF APPEALS OF THE STATE OF WAS INGTON
                                                                                  BY
                                                                                         B
                                                 DIVISION II

STATE OF WASHINGTON,                                                              No. 42570 0 II
                                                                                            - -


                                    Respondent,

          V.




ALLAN ROBERT SIMMONS,                                                     UNPUBLISHED OPINION




          HUNT, J. —Allan Robert Simmons appeals his standard range sentence for first degree
                                                               -

rape, imposed on remand for resentencing after an earlier appeal from his original sentence; he

also challenges the legal financial obligations (LFOs)that the resentencing court carried forward

from his       original .judgment    and sentence.       Simmons argues that defense counsel rendered

ineffective assistance by (1)erroneously stipulating to the comparability of a prior Illinois

conviction for offender score purposes at resentencing, ( )
                                                        2 unreasonably allowing Simmons to

participate in the Department of Corrections (DOC) presentence interview without a lawyer at

his original sentencing, and (3)failing to object to the resentencing court's consideration of the

original presentencing report. He also argues that insufficient evidence supports the resentencing

court's   finding   that he has the    ability   or   likely   future   ability   to pay his LFOs.   Holding that

Simmons' counsel did not render ineffective assistance and that his LFO challenge is not ripe,

we   dismiss Simmons'      appeal.
No. 42570 0 II
          - -


                                              FACTS


                              I. ORIGINAL SENTENCING; FIRST APPEAL

         On October 15, 2009, a jury found Simmons guilty of first degree rape and second degree

assault with sexual motivation. Before sentencing, he participated in a presentence investigation

interview with the DOC at the Thurston County jail. During this interview, Simmons described

the circumstances of his three earlier felony convictions: (1) 2005 Illinois aggravated battery
                                                              a

conviction, 2)a 2007 Illinois robbery conviction, and (3)a 2008 Washington second degree
            (

theft conviction. Simmons also gave his version of the events that led to his current first degree

rape conviction.

         At Simmons' original 2009 sentencing, the State presented evidence of a 2005 Illinois

aggravated battery conviction and a 2007 Illinois robbery conviction as " most serious
offenses "   to qualify him under RCW 9.
                                      570 of the Persistent Offender Accountability Act
                                        94A.


1
    Our opinion in Simmons' first appeal calls his 2005 Illinois aggravated battery an aggravated
assault." State    v.   Simmons, noted   at 162 Wn.   App. 1010,   2011 WL   2176485,   at *2. The

parties' briefs and the record. in the instant appeal, however, refer to this conviction as
aggravated " attery," term that the Illinois statute uses and that we also use here.
           b        the
2
  The State's 2009 sentencing brief included the Illinois statute, evidence that the Simmons
broke the jaw of the victim by intentionally kicking and stomping the victim's head," that
                                                                                      and
he had pled guilty. Supplemental Clerk's Papers at 63.
3
    RCW 030( 4A. The
        9.2). legislature amended RCW 9.
                3
                9                                         030 in 2009, 2010, 2011 and
                                                               94A.
2012. LAWS   of 2009, ch. 375, § 4, ch. 28, §4;LAWS of 2010, ch. 274, § 401, ch. 267, § 9, ch.

227, § 11, ch. 224, § l;LAWS of 2011, ch. 87, § 2, 1st Spec. Sess.,ch. 40, § 8; LAWS of 2012,
ch. 143, § 1. These amendments did not alter the statute in any way relevant to this case (other
than renumbering the sections in 2010 and 2011);
                                               accordingly, we cite the current version of the
statute.

          RCW 9. )..
              525( 4A.The legislature also amended RCW 9. in 2010 and 2011.
                       3
                       9                                         525    94A.
LAWS    of 2010, ch. 274 § 403;LAWS of 2011; ch. 166, § 3. Similarly, these amendments did not
alter the statute in any way relevant to this case; accordingly, we cite the current version of the
statute.



                                                 2
No. 42570 0 II
          - -



POAA). Simmons conceded that [his 2005 Illinois aggravated battery legally and factually]
       "

compared    to   a   most serious offense in   Washington "; but he contested the comparability of his

2007 Illinois    robbery    conviction.   The trial court ruled that Simmons' 2007 Illinois robbery

conviction was comparable to a most serious offense in Washington and sentenced Simmons

under the POAA to life without the possibility of parole. The trial court also ordered Simmons

to pay the minimum mandatory LFOs of 600.
                                     $

          Simmons appealed his convictions and life sentence, arguing for the first that ( )
                                                                                         1 his

current rape and second degree assault with sexual motivation convictions violated double

jeopardy principles, ( )his prior Illinois robbery conviction was not comparable to a most
                     2

serious offense in Washington, and (3)his defense counsel had been ineffective in failing to

argue at sentencing that his assault and rape convictions constituted the same criminal conduct

for offender score calculation purposes. Simmons, 2011 WL 2176485, at *6, 4.
                                                                         n.
          Simmons did not similarly argue, however, that his 2005 Illinois aggravated battery

conviction was not comparable to a Washington felony for .persistent offender sentencing

purposes or that trial counsel had rendered ineffective assistance in having conceded legal and

factual   comparability. Nor did Simmons argue that trial counsel had rendered ineffective




4
    State v. Simmons, noted at 162 Wn. App. 1010, 2011 WL 2176485, at * .
                                                                      2
5
    Simmons, 2011 WL 2176485, at *
                                 1.
6
  Because we vacated Simmons' conviction for second degree assault with sexual motivation on
other grounds in his first appeal, we did not address his ineffective assistance argument based on
trial counsel's failure to argue at sentencing that this assault conviction constituted the "same
criminal conduct"as the rape conviction.



                                                       3
No. 42570 0 II
          - -



assistance in having failed to object to the trial court's consideration of Simmons' presentence

report or in having failed to object to the trial court's imposition of LFOs.
         In Simmons' first appeal, we held ( ) . charged," second degree assault with sexual
                                           1 as "        the
                                                               8
motivation " had    no   purpose   independent   of the   rape," constituted double jeopardy, and,

therefore, must be vacated; and (2)because Simmons' prior 2007 Illinois robbery conviction was

not comparable to robbery in Washington, the trial court erred in sentencing him as a persistent

offender. We remanded to the trial court to vacate Simmons' conviction for second degree

assault with sexual motivation and to resentence him for only the first degree rape conviction.

Simmons, 2011 WL 2176485, at * , *6.
                             1 3, *

                          II. RESENTENCING ON REMAND; SECOND APPEAL

         At Simmons' 2011 resentencing hearing on remand, both parties agreed on his criminal

history and offender score of three, based on the same convictions that the trial court had

considered during his original 2009 sentencing (except for the 2007 Illinois robbery, that we had

excluded in his first    appeal): Simmons' 2005 Illinois aggravated battery conviction and his

Washington second degree theft conviction. The trial court resentenced Simmons to a standard

range sentence of 160 months to life in prison.


7
    Our opinion in Simmons' first appeal did not mention LFOs, either as an argument he raised or
an issue we addressed. See Simmons, 2011 WL 2176485. In the instant appeal, Simmons offers
no explanation for his failure to challenge his LFOs in his first appeal.
8
    Simmons, 2011 WL 2176485, at * 1.
9
    As we have already noted, our vacation of one of Simmons' two convictions in his first appeal
rendered moot his ineffective assistance of counsel claim based on trial counsel's failure to argue
that Simmons' two 2009 convictions constituted the same criminal conduct; therefore, we did not
further address this issue. See Simmons, WL 2176485, at * n. .
                                                          6, 4



                                                   0
No. 42570 0 II
          - -



       The trial court also imposed community custody terms. It retained and carried forward

its original 2009 order that Simmons pay $
                                         600 in LFOs. But it did not set restitution, instead

reserving   restitution for    some   later   time. Simmons appeals his standard range sentence
                                                                                  -

imposed on remand,,
                  including his LFOs.

                                                ANALYSIS


                              I. ASSISTANCE OF COUNSEL AT RESENTENCING


       Simmons first argues that he has a right to appeal his standard range sentence imposed on
                                                                        -

remand.      He contends that his defense counsel rendered ineffective assistance during

resentencing on remand in (1)stipulating that his Illinois aggravated battery conviction was

comparable to a Washington felony and (2)failing to object to the trial court's consideration of

his presentence report.

       Citing State v. Barberio, 121 Wn. d 48, 50 51, 846 P. d 519 (1993), State counters
                                       2          -        2             the

that we cannot consider Simmons' arguments in this second appeal because (1) failed to raise
                                                                            he

them in his first appeal; 2)
                          ( after his first appeal, he failed to raise them to the trial court during

resentencing on remand, thus denying the trial court an opportunity to address these arguments;

and (3) resentencing on remand, the trial court "
       in                                       made only corrective changes" to Simmons'

original judgment and sentence, amending"the judgment and sentence to reflect our reversal of
                                "

one of Simmons' convictions in his first appeal, thereby precluding additional appellate review

of the otherwise original judgment and sentence. Br. of Resp't at 8.




to The trial court stated: " ' going to reserve restitution. I'l impose the court costs that were
                           Im                                 l
imposed before which          are   the minimum that the Court   can   order."   Verbatim Report of
Proceedings at 14.

                                                     5
No. 42570 0 II
          - -



         Assuming, without deciding, that the trial court exercised independent judgment during

the resentencing hearing on remand, we explore Simmons' arguments only to the extent

necessary to determine whether he can appeal his standardrange sentence in this instance. We
                                                          -

hold that ( )
          1 Simmons' counsel was not deficient in stipulating to the comparability of the out-

of- conviction that Simmons did not previously challenge; and (2) resentencing outcome
  state                                                          the

would not have differed had counsel objected to the presentencing report. Because Simmons

does not show any defect in his sentencing procedure, he cannot appeal his standard range

sentence.


                                 A. Appealability; Standard of Review

         The law is well-
                        settled that, generally a defendant cannot appeal a standardrange
                                                                                     -

sentence. See RCW 9. ); Williams, 149 Wn. d 143, 146, 65 P. d 1214 (2003).
                  585( 4A.State v.
                     1
                     9                  2                 3

Nevertheless, a defendant can appeal a standard range sentence if the sentencing court failed to
                                                -

follow proper procedures, including offender score calculation procedures. See State v. Autrey,

136 Wn. App. 460, 469, 150 P. d 580 (2006).In those instances, appellate review is available to
                            3

correct legal errors or abuses of discretion in the determination of what sentence applies.
              "

Williams, 149 Wn. d at 147. Ineffective assistance of counsel at sentencing could fall within
                2

such an exception.

         An ineffective assistance claim presents a mixed question of law and fact, requiring de

novo    review. State   v.   A. . 168 Wn. d 91, 109, 225 P. d 956 (2010). To prevail on an
                             J., 2
                              N                           3



11
     On remand for resentencing, however, reversal of one or more counts in the original judgment
and sentence does not affect the finality of the portions of that original judgment and sentence
that were correct and valid at the time it was pronounced. State v. Kilgore, 167 Wn. d 28, 37,
                                                                                   2
216 P. d.2009) citing to In re Pers. Restraint of Carle, 93 Wn. d 31, 34, 604 P. d 1293
     393 (
         3            (                                              2                2
1980)).


                                                  n
No. 42570 0 II
          - -



ineffective assistance claim, a defendant must show both that ( ) counsel's performance was
                                                              1 his

deficient and (2) deficient performance prejudiced him. Strickland v. Washington, 466 U. .
                 the                                                                   S

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
                                                  State v. Grier, 171 Wn. d 17, 32 33, 246
                                                                        2          -

P. d 1260 (2011).Counsel's performance is deficient if it falls below an objective standard of
 3

reasonableness. State v. Stenson, 132 Wn. d 668, 705, 940 P. d 1239 (1997).Our scrutiny of a
                                        2                  2

defense counsel's performance is highly deferential; we apply a strong presumption of

reasonableness. Strickland, 466 U. .at 689; Grier, 171 Wn. d at 33.
                                 S                       2

       To establish the prejudice prong of the ineffective assistance of counsel test, a defendant

must show a reasonable probability that the outcome of the trial would have differed absent

counsel's deficient performance. Grier, 171 Wn. d at 34. Thus, w]ere a claim of ineffective
                                              2                "[ h

assistance of counsel rests on trial counsel's failure to object, a defendant must show that an

objection would likely have been sustained." State v. Fortun-
                                                            Cebada, 158 Wn. App. 158, 172,

241 P. d 800 (2010). Failure
     3                            to show either prong of the test defeats a claim of counsel's

ineffective assistance. Strickland, 466 U. . at 697; State v. Brockob, 159 Wn. d 311, 344 45,
                                         S                                   2            -

150 P. d 59 (2006).Simmons fails to sustain his burden here: -
     3

         B. Stipulation/ ailure To. bject to Comparability of OutofState Conviction
                       F          O                              - -

       Simmons premises his deficient performance argument on defense counsel's allegedly

erroneous stipulation ( nd failure to object)that Illinois's aggravated battery offense, to which he
                      a
                                                                                                   12
pled guilty   in 2005, was   legally comparable   to   Washington's second degree assault   offense.




12 In stipulating to Simmons' offender score at both the original sentencing and the resentencing
on remand, defense counsel relied on State v. Franklin, 46 Wn. App. 84, 729 P. d 70 (1986)
                                                                                2
overruled on other grounds by State v. Dunaway, 109 Wn. d 207, 743 P. d 1237, 749 P. d 160
                                                        2               2              2
1988)), which Division Three of our court held that aggravated battery under a 1982 Illinois
         in
statute was comparable to a class B felony under Washington law for offender score calculation

                                                   7
No. 42570 0 II
          - -



For the first time on appeal, Simmons argues that these two offenses were not comparable

because Illinois's definition of great bodily harm"was broader than Washington's definition of
                                 "

substantial     bodily   harm." Br. of   Appellant   at 9 ( internal   quotation marks omitted).   We


disagree.

         RCW 9. requires the sentencing court to determine an offender score based on
             525
               94A.

the number of adult and        juvenile felony   convictions before the      sentencing   date.   RCW


525( 4A. Out of-
9. 1).- state convictions are classified according to the comparable offense
   9

definitions and sentences under      Washington      law.    RCW       525( 4A. An out ofstate
                                                                       9. 3).
                                                                          9            -  -


conviction may be included in the offender score if there is either legal or factual comparability

with a Washington felony. In re Pers. Restraint of Lavery, 154 Wn. d 249, 255, 111 P. d 837
                                                                 2                  3

2005).

                                         1. Legal Comparability

         We determine legal comparability by examining the elements of the out ofstate offense
                                                                               - -

and the corresponding Washington statutes in effect when the foreign crime was committed.

State   v.   Morley, 134 Wn. d 588, 606; 952
                           2 -                   P. d 167 (1998).
                                                  2                     Offenses are comparable if the

elements are identical or if the outofstate offense statute is not broader than the Washington
                                    - -

statute. State v. Ford, 137 Wn. d 472, 479, 973 P. d 452 ( 999).
                              2                  2       1

         The State argues that State v. Franklin, 46 Wn. App. 84, 729 P. d 70 (1986) overruled
                                                                       2              (

on other grounds by State v. Dunaway, 109 Wn. d 207, 743 P. d 1237, 749 P. d 160 (1988)),
                                            2             2              2

controls whether aggravated battery in Illinois is substantially similar to second degree assault in


purposes. Although both the Illinois and the Washington statutes have since been amended, we
agree with the State that these two offenses are legally comparable and factually comparable.



                                                     3
No. 42570 0 II
          - -



Washington.     Simmons responds that Franklin does not control here because the criminal

statutes compared in that case have since been repealed and amended. We agree with Simmons

that Franklin's 27- old definition of both states' statutes no longer control and, therefore,
                  year -

Franklin does not apply here.

       Instead, we address whether Illinois's battery statute is comparable to Washington's

assault statute, which turns    on   their   respective " bodily   harm" elements.   Washington State

defines degrees of bodily harm by statute, whereas Illinois relies on case law to define its

variations of bodily harm; this distinction, however, does not foreclose a determination of legal

comparability

                      a. Illinois's aggravated battery: " reat bodily harm"
                                                        g

       In 2005, Simmons pled guilty to aggravated battery under former 720 I11. Comp. Stat.

5/2 4( )2005),
 1 - a (     which then provided, A person who, in committing a battery, intentionally or
                                  "

knowingly causes great bodily harm, or permanent disability or disfigurement commits

aggravated battery. " ( Emphasis added). With respect to the "
                                                             bodily harm"component of this

element:


       Although it may be difficult to pinpoint exactly what constitutes bodily harm for
       the purposes of the [Illinois battery] statute, some sort ofphysical pain or damage

13
  In 2011, the Illinois legislature amended 720 Ill. Comp. Stat. 5/2 3,defining "battery,"
                                                                       1 -               to
remove the specific intent element. The pertinent portion of this statute now provides:
       a) person commits battery if he or she knowingly without legal justification by
         A
        any means (1)   causes bodily harm to an individual or ( makes physical contact
                                                                2)
        of an insulting or provoking nature with an individual.
In 2011, the Illinois legislature also amended 720 Ill. Comp. Stat. 5/2 4,now renumbered as
                                                                        1 -
720 Ill.Comp. Stat. 5/2 3.5. The pertinent portion of this statute now provides:
                        1 - 0
        a) ... person commits aggravated battery when, in committing a battery, other
                A
        than by the discharge of a firearm, he or she knowingly does any of the following:
        1)  Causes great bodily harm or permanent disability or disfigurement.
Neither amendment affected the substance of the statutes at issue here.



                                                      9
No. 42570 0 II
          - -



      to the body, like lacerations, bruises or abrasions, whether temporary or
      permanent, is required.

People v. Mays, 91 Ill.2d 251, 256, 437 N. .
                                        2d 633, 62 Ill.Dec. 945 (1982)emphasis added).
                                         E                             (

T] e determination centers upon the injuries which the victim did, in fact, receive."People v.
 h

Figures, 216 Ill.App. 3d 398, 401, 576 N. .1089, 160 Ill.Dec. 135 (1991)citing People v.
                                       2d
                                        E                                (

Costello, 95 Ill.App. 3d 680, 684, 420 N. .
                                       2d 592, 51 Ill.Dec. 178 (1981)). the injury need
                                        E                            But

not be permanent; nor does it require broken bones or injury to the head or skull. People v.

Smith, 6 Ill.App. 3d 259, 264, 285 N. . (1972);
                                   2d 460
                                    E         People v. Edwards, 304 Ill.App. 3d 250,

255, 710 N. .
         2d 507, 237 Ill.Dec. 877 (1999).
          E

       Illinois's aggravated battery statute's use of "[ reat" to modify "bodily harm" means
                                                      g]
remarkable in    magnitude, power, intensity, degree   or   effectiveness. "'   In re J. .,
                                                                                       A 336 Ill.App.

3d 814, 820, 784 N. .373, 271 Ill. Dec. 155 (2003) Gallagher, J.,
                 2d
                  E                     _          (            concurring) quoting
                                                                            (

WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 994 (1993)).
                                                        Thus, with                      respect to the

great"bodily harm component of this element, Illinois's aggravated battery required physical

pain or damage to the body of a nature more severe than ordinary battery. Mays, 91 I11. 2d at

256; Figures, 216 Ill.App. 3d at 401. " ecause great bodily harm requires an injury of a graver
                                      B

and more serious character than an ordinary battery, simple logic dictates that the injury must be

more severe than that set out in the Mays definition."Figures, 216 Ill.App. 3d at 401 (emphasis

added).




                                                10
No. 42570 0 II
          - -



                     b. Washington's second degree assault: "
                                                            substantial bodily harm"

           In Washington, a person commits second degree assault when he "[
                                                                         i] ntentionally assaults

another and         thereby recklessly inflicts substantial bodily           harm."    RCW 9A. 6.
                                                                                           a)
                                                                                           021(
                                                                                              1)(
                                                                                              3
                         14
emphasis added). RCW 9A. 4.
                     b)
                     110(
                        4)(
                        0 defines "substantial bodily harm"as

           bodily injury which involves a temporary but substantial disfigurement, or which
           causes a temporary but substantial loss or impairment of the function of any
           bodily part or organ, or which causes a fracture of any bodily part.
                              15
Emphasis added).                   Our Washington Supreme Court recently refined the definition of

substantial "'       as a     degree                   considerable in amount, value, or worth. "' State v.
                                       of harm that is "`


McKague, 172 Wn. d 802, 805, 262 P. d 1225 ( 2011) ( uoting WEBSTER'S THIRD NEW
               2                  3                q

INTERNATIONAL DICTIONARY 2280 (2002)).

                                                     c. Comparison
                                                                                                      16
           The "great       bodily     harm" element of Illinois's former   aggravated battery statute,    under


which Simmons was convicted and which has since been amended, is legally comparable to the

substantial bodily harm" element of Washington's second degree assault because, under each

state's definition, one type of harm required is harm that is not permanent, but instead,

considerable "'          or "` remarkable, "'notable and of consequence. McKague, 172 Wn. d at 805
                                                                                        2

quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002)); re J. ., Ill.
                                                                In     A 336


14
     The   legislature     amended RCW 9A. 6. in 2007 and 2011. LAWS
                                       021
                                         3                                          2007, ch. 79, § 2;
                                                                                        OF

LAWS OF         2011, ch. 166, § 1. The amendments did not alter the statute in any way relevant to this
case; accordingly, we cite the current version of the statute.
15
     The   legislature   amended RCW 9A. 4. 2007, 2010 and 2011. LAWS OF 2007, ch. 79, §3;
                                        110 in
                                             0
LAWS       OF   2011, ch. 166, § 1 and ch. 336, § 350. The amendments did not alter the statute in any

way relevant to this case; accordingly, we cite the current version of the statute.
16
     Former 720 Ill.Comp. Stat. 5/2 4( ) (
                                 1 - a emphasis added).

                                                           11
No. 42570 0 II
          - -



App. 3d at 820 (Gallagher, 7.,
                             concurring) quoting WEBSTER'S THIRD NEW INTERNATIONAL
                                         (

DICTIONARY 994 ( 993))
               1

       Illinois's former aggravated battery statute also included, however, a more severe degree

of harm than mere substantial bodily harm, namely "permanent disability or disfigurement,"

which was comparable to the "great bodily harm" required for Washington's first degree
       17 .
assault,      but more severe than its lesser included "substantial bodily harm" element of

Washington's       second   degree assault          18 Former 720 Ill. Comp. Stat. 5/2 4a)emphasis
                                             statute.                               1 - ( (

added). Thus, this more severe type of aggravated battery in Illinois would also be comparable

to Washington's second degree assault for offender score calculation purposes. Nevertheless, we

also address factual comparability.

                                         2. Factual Comparability

       To determine factual comparability, the sentencing court may rely on facts in the foreign
                                            "

record that are admitted, stipulated to,or proved beyond a reasonable doubt."State v. Thiefault,

160 Wn. d 409, 415, 158 P. d 580 (2007)citing Lavery, 154 Wn. d at 258).When Simmons
      2                  3              (                   2

pled guilty to the 2005 Illinois aggravated battery under former 720 Ill.Comp. Stat. 5/2 4( ),
                                                                                      1 - a he

stipulated that he "did knowingly cause great bodily harm to a Billy Roberts in that he struck

Billy Roberts on or about the face and head." Supplemental Clerk's Papers at 74. In effect,


17
     RCW 9A. 4.
         c) added);
         110(
            4)(
            0 emphasis ( 36.
                       RCW 9A.
                           011.

     RCW 9A. 6.
         021.
           3


19 The accompanying police report showed that Simmons broke the Illinois aggravated battery
victim's jaw by punching and kicking the victim in the face and head. Again, this " racture"of
                                                                                  f
the victim's jaw, a "bodily part,"
                                 meets Washington's definition of substantial bodily harm"for
                                                                  "
purposes      of   Washington's second degree assault        statute.   RCW 9A. 6.RCW
                                                                            a);
                                                                            021(
                                                                               1)(
                                                                               3


                                                        12
No. 42570 0 II
          - -



Simmons' stipulation to the Illinois aggravated battery conviction based on infliction of great
                                                                                          "

bodily harm" confirms the Illinois statutes' legal comparability to Washington's second degree

assault statute,based on the " odily harm analysis"undertaken by this court.
                             b

       We hold, therefore, that Simmons' Illinois aggravated battery conviction is comparable to

Washington's second degree assault and, thus, defense counsel's stipulation to comparability

was reasonable and not deficient performance; therefore, his ineffective assistance of counsel
claim also fails.


                       C. Failure To Object to Presentence Investigation

        Simmons next argues that defense counsel's performance was deficient in failing to

object to the use of his 2009 presentence report during resentencing in 2011. Again, Simmons

does not show deficiency in defense counsel's performance in failing to object at resentencing to

the resentencing court's consideration of the 2009 presentence report before imposing a standard

range sentence. And, even if Simmons could show deficiency in defense counsel's performance,

Simmons fails to show any prejudice or that, had counsel objected, the trial court "may have

been inclined to set his minimum sentence below the of the standard range"instead of the

high end. Br. of Appellant at 14 (emphasis added).See Fortun-
                                                            Cebada, 158 Wn.App. at 172.




9A. 4. Thus, Simmons' 2005 Illinois aggravated battery conviction was factually
b).
110(   4)(
       0
comparable to Washington's second degree assault.
20
  In light of Simmons' having failed to show deficient performance, we need not address the
second prong of the ineffective assistance test. Strickland, 466 U. . at 697. Nevertheless, we
                                                                  S
note that Simmons also fails to show that his offender score was wrongly calculated or that it
would have been lower absent counsel's stipulation. Thus, he fails to sustain his burden on the
prejudice prong as well.



                                               13
No. 42570 0 II
          - -



        The superior court judge who resentenced Simmons on remand following his first appeal

was   the   same   judge    who had   presided   over   Simmons'   original   trial in 2009.   Before the


resentencing hearing, the trial court reviewed the presentence investigation. However, the trial

court expressly set the mandatory minimum sentence at the high end "based on the facts as [the]

Court heard them and as found by the jury,"
                                          stating:

               Clearly, even based on what Mr. Simmons said today, he does not
        understand or appreciate how serious his actions were and the very damaging
        effect they have not just on the victim in this case but potentially on the
        community      atlarge when he's released. He said he " didn't let this little
        altercation get the best of me."This was not a little altercation. It was a brutal
        rape and the testimony at trial and the findings of the jury support that.

Verbatim Report of Proceedings at 13. Again, Simmons fails to establish either prong of the

ineffective assistance of counsel test, and his claim fails.

                    II. MANDATORY LFOs,WITH NO FINDING OF ABILITY TO PAY

        Simmons next argues that the record does .not support the trial court's finding of his

present or future ability to pay the $ 00 minimum mandatory LFOs re-
                                     6                             imposed at resentencing
and, therefore, we should vacate these LFOs. Simmons failed to preserve this issue for review;

thus, we do not address its merits.

        First, Simmons does not demonstrate a manifest constitutional error warranting an

exception to the preservation rule under RAP 2. (Simmons did not avail himself of multiple
                                             a).
                                              5

opportunities to challenge imposition of LFOs, based on the trial court's lack of findings about

his ability to pay: ( during his original sentencing in 2009, when the trial court imposed them;
                    1)

2) his first appeal, from that original sentencing, in which he challenged other aspects of his
  in



21 RCW 10. 1.
       160(
          3 provides that the trial court may not order legal financial obligations unless
          0 )
the defendant " s or will be able to pay them."
              i

                                                        14
No. 42570 0 II
          - -



sentence; and (3)when he was before the trial court again during resentencing on remand in

2011. Yet, he did not object to the trial court's imposition of the minimum mandatory LFOs; nor

did he bring to the trial court's attention that it had failed to enter findings about his ability to

pay. We hold that Simmons failed to preserve this issue for review; therefore we do not further

consider it.


       Second, RAP 2. (
                   c)(does not render viable every issue that a defendant could have
                    1)
                    5

raised, but did not raise; in an earlier appeal; o]ly if the trial court, on remand, exercised its
                                                 "[ n

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

question." Barberio, 121 Wn. d at 50; see also State v. Kilgore, 167 Wn. d 28, 41, 2.6 P. d
                           2                                           2            1   3

393 (2009). This prohibition is especially pertinent here because the record shows that during

resentencing on remand, the trial court essentially passed through the LFOs that it had originally

imposed in 2009, which at that time Simmons had neither challenged nor claimed he could not

pay; nor did he raise this issue during his first appeal, from his original 2009 judgment and

sentence. In our view, the record does not show that the trial court actually reconsidered these

LFOs in substance or made any new discretionary ruling about them during resentencing on

remand; instead, it merely acknowledged the previous LFOs it had imposed and passed them

through on the new judgment and sentence form that it signed on resentencing.

        We dismiss Simmons' appeal.




                                                  15
No. 42570 0 1I
          - -



      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

2.6.it is
040,
 0           so   ordered.
                                                  f

                                               Hunt, J.
We concur:




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