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DATE NOV 2 6 2014
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 89900-2
)
Respondent, )
)
v. ) EnBanc
)
IGNACIO COBOS, )
) Filed NOV 2 6 2014
Petitioner. )
_________________________)
GONZALEZ, I.-Ignacio Cobos represented himself at his sentencing hearing
and objected to the State's calculation of his offender score. The trial judge sentenced
Cobos with the offender score asserted by the State without holding an evidentiary
hearing because Cobos's former counsel had agreed to the score prior to being
discharged. The Court of Appeals found the sentencing court erred in failing to hold
an evidentiary hearing, remanded for resentencing, and concluded that both sides
could introduce supplemental evidence of the proper score on remand. State v. Cobos,
178 Wn. App. 692, 700-01, 315 P.3d 600 (2013) (citing LAWS OF 2008, ch. 231, § 4
(codified at RCW 9.94A.530(2))). We granted review. State v. Cobos, 180 Wn.2d
1008, 325 P.3d 913 (2014). Cobos argues the State is barred from offering new
evidence on remand under the common law "no second chance" rule. Our decision is
State v. Cobos, No. 89900-2
controlled by State v. Jones, No. 89302-1 (Wash. Nov. 26, 2014), where we held that
RCW 9.94A.530(2) supersedes our common law "no second chance" rule.
Accordingly, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Cobos was convicted of delivery of methamphetamine, possession of
methamphetamine, and voyeurism. At his sentencing hearing, Cobos moved to
represent himself. Before the court ruled on his motion, defense counsel and the State
agreed Cobos had an offender score of9. The court granted Cobos's motion to
represent himself, and sentencing was continued without revisiting the offender score
calculation. 1 At the second sentencing hearing a week later, Cobos objected to the
State's summary of his criminal history.
The State offered to obtain certified copies of the judgments and sentences and
suggested a two-week continuance. Cobos objected to a continuance and maintained
his objection to the calculation of his offender score. Verbatim Report of Proceedings
(Feb. 14, 2012) at 24 ("I don't agree to that calculation of the offender score .... And
if the Court wants to continue the sentencing, that's up to the Court.... I just want to
--to note an objection."). The court proceeded with sentencing based on the State's
asserted offender score of9 and sentenced Cobos to 120 months' confinement.
Cobos appealed, and the Court of Appeals held the sentencing court erred when
1
This summary of facts is based on the criminal minute sheet from the February 7, 2012,
sentencing. A transcript of that hearing is not in our record.
2
State v. Cobos, No. 89900-2
it failed to hold an evidentiary hearing and instead relied on material facts to which
Cobos objected. Cobos, 178 Wn: App. at 700. The Court of Appeals held the parties
could introduce new evidence regarding criminal history pursuant to the 2008
statutory amendment to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A
RCW. I d. at 700-01. Cobos filed a pro se petition for review, which we granted.
Cobos, 180 Wn.2d 1008. Cobos declined appointment of counsel to handle his
appeal.
ANALYSIS
Cobos argues the State should be held to the existing record on remand under
the common law "no second chance" rule. Under our common law, on remand for
resentencing following the appeal of a sentencing error, the State was permitted to
introduce new evidence if the defendant had not made a specific objection at
sentencing. State v. Ford, 137 Wn.2d 472, 485-86, 973 P.2d 452 (1999). But see In
re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876-78, 123 P.3d 456 (2005)
(holding that under unique circumstances, State was not permitted to introduce new
evidence on remand even though defendant did not object). But where a defendant
made a specific objection at sentencing, the State was generally held to the original
sentencing record. Ford, 137 Wn.2d at 485; State v. Lopez, 147 Wn.2d 515, 520-21,
55 P.3d 609 (2002). But see State v. Bergstrom, 162 Wn.2d 87, 96-98, 169 P.3d 816
(2007) (permitting State to introduce new evidence where defense counsel had
3
State v. Cobos, No. 89900-2
acknowledged criminal history over defendant's prose objection). The "no second
chance" rule served to preserve judicial economy. See Jones, slip op.
Subsequent to the development of the common law rule, the legislature
ainended several provisions of the SRA in 2008 "to ensure that sentences imposed
accurately ret1ect 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 provide that "[o]n 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.
In Jones, we held that this provision ofRCW 9.94A.530(2) superseded our
' '
common law "no second chance" rule. Cobos does not challenge the statute and
raises no additional arguments for our consideration, and so we follow our decision in
Jones and affirm the Court of Appeals.
4
State v. Cobos, No. 89900-2
WE CONCUR:
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