FILED
SEPT. 24,2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30672-1-111
) Consolidated with
Respondent, ) No. 31043-4-111
)
v. )
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MARQUIS JONES, ) UNPUBLISHED OPINION
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Appellant. )
)
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In re Personal Restraint Petition of: )
)
MARQUIS JONES, )
)
Petitioner. )
BROWN, J. - Marquis Jones appeals his resentencing, contending his 2001
convictions and firearm sentence enhancements on two counts of attempted first
degree robbery violate double jeopardy principles. In a personal restraint petition
(PRP), Mr. Jones argues the trial court in 2000 violated erR 4.1 and deprived him of
due process by failing to arraign him on the State's amended information where he did
not receive a copy of it and lacked actual notice of its charges. Additionally, Mr. Jones
filed a statement of additional grounds for review that attaches evidence supporting his
No. 30672-1-111, consol. with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones
PRP. We conclude his appeal presents no reviewable error claim and his PRP is time
barred. Accordingly, we dismiss Mr. Jones's appeal and PRP.
FACTS
In April 2000, the State charged Mr. Jones with first degree premeditated murder.
The trial court arrajgned him on the original information. In August 2000, the State filed
amended information charging him with first degree felony murder, first degree burglary,
first degree robbery, two counts of attempted first degree robbery, and first degree
unlawful firearm possession. The amended information alleged he committed the
murder, burglary, robbery, and attempted robberies while armed with a firearm. He
claims the trial court did not arraign him on the amended information, he did not receive
a copy of it, and he lacked actual notice of its charges.
Following a bench trial, the trial court found Mr. Jones guilty of first degree felony
murder, first degree burglary, one count of attempted first degree robbery as a lesser
included offense, two counts of attempted first degree robbery as charged, and first
degree unlawful firearm possession. The court found he committed the murder, 1
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burglary, and attempted robberies while armed with a firearm. The court filed his It
judgment and sentence with the clerk on January 29,2001 and issued an order
correcting his sentence the next day. He timely appealed his convictions while the time
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for appealing his sentences passed. We affirmed his convictions and our Supreme
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Court denied review. State v. Jones, No. 19909-6-111,2002 WL 982618, at *1 (Wash. I
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Ct. App. May 14,2002), noted at 111 Wn. App. 1039, review denied, 60 P.3d 93. Then,
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this court issued a mandate terminating review on November 5,2002.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones
Between 2004 and 2006, Mr. Jones apparently filed two unsuccessful PRPs
based on newly discovered evidence. In September 2010, he filed a PRP with our
Supreme Court, arguing his convictions for first degree burglary and one count of
attempted first degree robbery as predicates to his first degree felony murder conviction
violated double jeopardy principles. The State conceded this argument. Additionally,
he challenged his firearm sentence enhancements. A five-justice department of our
Supreme Court unanimously accepted the State's concession on his double jeopardy
argument but rejected his challenges to his firearm sentence enhancements. Thus, in
September 2011, our Supreme Court granted Mr. Jones's PRP in part and remanded to
the trial court with directions to vacate his convictions for first degree burglary and one
count of attempted first degree robbery, and resentence him accordingly.
On remand, the trial court vacated Mr. Jones's convictions for burglary and one
count of attempted robbery. The court imposed 429 months' imprisonment with a 120
month firearm sentence enhancement for his felony murder, 96.75 to 120 months'
imprisonment with a 72-month firearm sentence enhancement for each of his two
counts of attempted robbery, and 116 months' imprisonment for his unlawful firearm
possession. The court ordered he serve the felony murder sentence concurrent with
the other base sentences but consecutive to the other sentence enhancements, for a
total of 693 months' imprisonment. These are the same base sentences and firearm
sentence enhancements the court previously imposed for his remaining convictions.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones
The court arrived at this result after considering and rejecting one of Mr. Jones's
new arguments. Initially, the court assured the parties it had thoroughly prepared itself
for resentencing:
In preparation for today's extensive hearing, everyone should know
that I spent a great deal of time preparing for this. I read the entire court
file, which is actually four full volumes. I read all of counsels' respective
memorandums. I read the defense memorandum from top to bottom,
which was quite voluminous. I also was apprised of a great deal of case
law, and I think the parties and Mr. Jones deserve to have the best the
Court has to offer. So I took the time to go through all of that material, and
I actually spent till almost 9:00 at night here last night going through this.
That's how important I think this is.
[The issue is], what to do with the balance of the counts which survive
So, as I said, I've studied this file very carefully. I'm certainly mindful of
the argument of Counsel. I think I'm well-advised regarding the law in this
area that has been provided.
Report of Proceedings (RP) (Feb. 10,2012) at 46-47,50.
Then, the court extensively discussed Mr. Jones's request for an exceptional
sentence downward, ruling:
But the question is, ... whether the Court should consider [Mr. Jones's
troubled youth and hopeful adult progress] this morning as a mitigating
factor in terms of resentencing as to this gentleman.
I have considered the same. I've considered it in great regard.
Frankly, I am not necessarily convinced that the Court should adopt any
mitigating factor this morning. . .. I will not be directing a mitigation
sentence downward.
RP (Feb. 10,2012) at 54.
Finally, the court declined to consider Mr. Jones's request to halve the firearm
sentence enhancements because a five-justice department of our Supreme Court had
unanimously rejected this portion of his PRP:
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No. 30672-1-111, conso/. with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones
So let me now turn to the issue of the various enhancements ... , the
most significant fact of the enhancements being the doubling that was
ordered ....
Counsel for Mr. Jones has raised I think a very valid and solid
argument regarding a significant point here that the enhancements and
the doubling and whether the underlying predicate offense was ever
demonstrated at the trial Court level ....
. . . [T]he language of the Supreme Court, which I've read several times,
from September 7,2011, is very telling. I would submit to counsel it's
mandatory language, and it reads, again, "Mr. Jones' challenge to the
firearm enhancements is unanimously rejected." That's mandatory
language, again, as far as this Court considers.
It does make clear to me that firearm enhancement was certainly a
matter that the appellate court had under its review and entertained and
should not be considered by the trial Court for purposes of resentencing,
for purposes of either vacating those enhancements, reconsidering them,
modifying them. They were unanimously rejected at the appellate level,
and I will not be changing anything in that regard as to sentencing this
morning.
RP (Feb. 10,2012) at 54-56.
The trial court filed an amended judgment and sentence on February 13, 2012.
On February 15, 2012, Mr. Jones moved to vacate all his convictions under CrR 7.8,
arguing the trial court in 2000 did not arraign him on the amended information, he did
not receive a copy of it, and he lacked actual notice of its charges. He appealed his
amended judgment and sentence. The trial court transferred his motion to this court for
treatment as a PRP.
ANALYSIS
A. Direct Appeal
The issue is whether Mr. Jones's appeal presents a reviewable error claim. The
State argues we must dismiss his appeal because his new contentions address matters
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beyond the scope of the trial court's action on remand.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones
On remand, a trial court may "exercise independent judgment" regarding issues
the parties did not raise in earlier appellate review and, where it does so, the decision is
subject to later appellate review. RAP 2.5(c)(1) cmt., 86 Wn.2d 1153 (1976); see State
V. Barberio, 121 Wn.2d 48,50-51,846 P.2d 519 (1993). But "a case has no remaining
appealable issues where an appellate court issues a mandate reversing one or more
counts and affirming the remaining count[s], and where the trial court exercises no
discretion on remand as to the remaining final counts." State V. Kilgore, 167 Wn.2d 28,
37,216 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.
Here, the trial court considered Mr. Jones' argument for an exceptional sentence
downward and decided it against him. Thus, the court exercised independent judgment
on this issue by reviewing and ruling on it. But Mr. Jones does not raise this issue in his
direct appeal. He instead argues two of his attempted robbery convictions and firearm
sentence enhancements violate double jeopardy principles because they are premised
on the same actus reus. The court never considered this argument on the record and,
unfortunately, did not explain why it failed to do so. Mr. Jones suggests the court
confused this argument with his request to halve all four of his firearm sentence
enhancements. He then suggests the court abused its discretion by mistakenly
believing our Supreme Court's order deprived it of authority to rule on this argument.
But the trial court clearly read the order as addressing Mr. Jones's argument on
"doubling" of his firearm sentence enhancements solely. RP (Feb. 10,2012) at 55.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones
While our record does not contain his most recent PRP to our Supreme Court, he
represented to both the trial court and this court that his argument concerned whether
the State proved the prerequisite for "doubling" his firearm sentence enhancements.
CP at 61, 66; Opening Sr. at 10. This argument rested on different grounds than those
Mr. Jones raises in his direct appeal.
Our record shows Mr. Jones raised his current double jeopardy argument for the
first time on remand and, while the trial court assured the parties it had thoroughly
prepared itself for resentencing, it never considered his current double jeopardy
argument on the record. In sum, the court did not exercise independent judgment on
the issue he raises in his direct appeal. Therefore, his appeal presents no reviewable
error claim.
S. PRP
The issue is whether Mr. Jones's PRP is time barred. 1 The State argues we
must dismiss his PRP because he filed it more than one year after his original judgment
and sentence became final.
Where a trial court with competent jurisdiction enters a facially valid 2 judgment
and sentence, a defendant must collaterally attack the judgment if at all within one year
of the date it becomes final. RCW 10.73.090(1). A PRP is a collateral attack. RCW
10.73.090(2). If the defendant does not bring a timely direct appeal, the judgment
Considering our analysis below, we do not reach the parties' arguments on
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whether Mr. Jones's PRP is procedurally barred under RAP 16.4(d) or RCW 10.73.140.
2 Mr. Jones does not argue the trial court's alleged error rendered his judgment
and sentence facially invalid.
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No. 30672-1-111, consolo with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones
becomes final for PRP purposes on the date the trial court files it with the clerk. RCW
10.73.090(3)(a). If the defendant brings a timely direct appeal, the judgment becomes
final for PRP purposes on the date the appellate court issues a mandate terminating
review. RCW 10.73.090(3)(b). But the judgment is not final until both the convictions
and sentences are final. In re Pers. Restraint of Sky/stad, 160 Wn.2d 944, 946, 952,
955, 162 P.3d 413 (2007).
Essentially, a judgment becomes final for PRP purposes "when all litigation on
the merits ends." Id. at 948-49. In this context, litigation on the merits includes remand
from direct review-either an appeal to our state courts alone or an appeal to our state
courts followed by a petition for certiorari to the U.S. Supreme Court. RCW
10.73.090(3); Sky/stad, 160 Wn.2d at 948-52. But remand from a successful PRP
cannot restart litigation on the merits so as to extinguish finality for purposes of
subsequent PRPs. See Sky/stad, 160 Wn.2d at 948-52. As our Supreme Court
recently stated,
[O]nce the one-year time limit has run, a petitioner may seek relief only for
the defect that renders the judgment not valid on its face [under RCW
10.73.90] (or one of the exceptions listed in RCW 10.73.100). And when
that defect is cured, the entry of a corrected judgment does not trigger a
new one-year window for judgment provisions that were always valid on
their face. . .. [R]aising a claim under one of the exceptions ... does not
open the door to other time-barred claims.
In re Pers. Restraint of Adams, No. 87501-4, slip op. at 8-12 (Wash. Sept. 12,2013)
(discussing In re Pers. Restraint of Coats, 173 Wn.2d 123,267 P.3d 324 (2011);
Sky/stad, 160 Wn.2d 944).
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No. 30672-1-111, consol. with No. 31043-4-111
State v. Jones; In re Pers. Restraint of Jones
Here, the trial court filed Mr. Jones's original judgment and sentence with the
clerk on January 29, 2001 and issued an order correcting his sentence the next day.
He timely appealed his convictions while the time for appealing his sentences passed.
We affirmed his convictions and our Supreme Court denied review. Jones, 2002 WL
982618, at *1. Then, this court issued a mandate terminating review on November 5,
2002. Thus, his convictions and sentences became final on November 5,2002. See
RCW 10.73.090(3)(b). But he filed his current PRP with the trial court nearly 10 years
later on February 15, 2012.
Mr. Jones's most recent PRP to our Supreme Court was timely because the
double jeopardy argument he raised there fit an exception to the one year limit on
collateral attacks. See RCW 10.73.100(3). But remand from that successful PRP did
not restart litigation on the merits so as to extinguish finality for purposes of subsequent
PRPs. See Skylstad, 160 Wn.2d at 948-52. In other words, Mr. Jones's amended
judgment and sentence did not remove the time bar on his current PRP to this court.
See Adams, slip op: at 8-12. Vacating his unlawful convictions and resentencing him
did not affect the finality of his remaining convictions. See id.; cf. McNutt v. Delmore, 47
Wn.2d 563, 565, 288 P.2d 848 (1955), overruled on other grounds by State v.
Sampson, 82 Wn.2d 663,513 P.2d 60 (1973); In re Pers. Restraint of Carle, 93 Wn.2d
31,34,604 P.2d 1293 (1980); Kilgore, 167 Wn.2d at 37. Therefore, his PRP is time
barred.
Mr. Jones's appeal and PRP are dismissed.
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No. 30672-1-111, consol. with No. 31043-4-111
State V. Jones; In re Pers. Restraint of Jones
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J. (j
WE CONCUR:
~Iacr
Siddoway, A.C.J.
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