Filed
Washington State
Court of Appeals
Division Two
June 5, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50026-4-II
Respondent,
v.
BRIAN MCEVOY, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — In a previous appeal, we vacated two of Brian McEvoy’s convictions
and remanded the case for resentencing. McEvoy appeals his exceptional sentence following
remand, arguing that the resentencing court abused its discretion when it determined that it
lacked the authority to reconsider the sentence for his remaining convictions and that the trial
court erred by failing to enter written findings and conclusions in support of his exceptional
sentence. We agree and remand for the resentencing court to consider whether to exercise its
discretion to resentence McEvoy for his remaining convictions and to enter findings of facts and
conclusions of law if needed.
FACTS
A jury found McEvoy guilty of second degree assault, fourth degree assault, two counts
of felony harassment, unlawful imprisonment, interfering with reporting domestic violence, third
degree malicious mischief, two counts of violation of a no contact order, felony stalking,
attempting to elude a pursuing police vehicle, and second degree unlawful possession of a
firearm. The jury also returned special verdicts finding that the second degree assault and fourth
No. 50026-4-II
degree assault involved members of the same household and that the assaults occurred within the
sight or sound of the victim’s children.
At sentencing, the trial court imposed an exceptional sentence of approximately 234
months based on the jury’s findings. The trial court did not enter written findings of fact and
conclusions of law supporting McEvoy’s exceptional sentence. McEvoy appealed his
convictions, but he did not challenge his exceptional sentence. We determined that both of
McEvoy’s convictions for violation of a no contact order violated the double jeopardy
prohibition because the two convictions merged with his conviction for felony stalking.
Accordingly, we vacated McEvoy’s convictions for violation of a no contact order and ordered
“remand for resentencing consistent with [the] opinion.” State v. McEvoy, No. 46795-0-II, slip
op. at 24-25 (Wash. Ct. App. June 14, 2016) (unpublished). A mandate was issued for “further
proceedings in accordance with the attached true copy of the opinion.” Mandate, State v.
McEvoy, No. 46795-0-II, at 1 (Wash. Ct. App. Nov. 8, 2016).
At the resentencing hearing, McEvoy argued that this court’s mandate permitted the court
to resentence him for his remaining convictions. The resentencing court declined to reconsider
McEvoy’s exceptional sentence, reasoning that it had discretion only to vacate McEvoy’s
convictions for violation of a no contact order. The resentencing court entered an order
amending the original judgment and sentence and reduced McEvoy’s exceptional sentence to a
total of 214 months of incarceration. McEvoy appeals.
ANALYSIS
McEvoy argues that the resentencing court abused its discretion when it determined that
it lacked the authority on remand to resentence him for his remaining convictions and that the
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No. 50026-4-II
trial court erred by failing to enter written findings and conclusions in support of his exceptional
sentence. The State concedes that the trial court erred by failing to enter findings and
conclusions. We agree that the resentencing court abused its discretion, and we accept the
State’s concession of error. Accordingly, we remand for the resentencing court to consider
whether to exercise its discretion to resentence McEvoy for his remaining convictions. If the
court declines to exercise its discretion, or exercises its discretion and imposes an exceptional
sentence, we further instruct the resentencing court to enter findings of fact and conclusions of
law supporting McEvoy’s exceptional sentence.
I. DISCRETION TO RESENTENCE
McEvoy argues that the resentencing court abused its discretion when it determined that
it lacked the authority on remand to resentence him for his remaining convictions. The State
argues that the law of the case doctrine precludes review of McEvoy’s argument. We agree with
McEvoy.1
The law of the case doctrine provides that once there is an appellate court ruling, its
holding must be followed in all subsequent stages of the same litigation. State v. Schwab, 163
Wn.2d 664, 672, 185 P.3d 1151 (2008). RAP 2.5(c)(1) restricts the law of the case doctrine,
providing that, on remand, a trial court has the discretion to revisit an issue that was not the
subject of the earlier appeal and exercise its independent judgment. See State v. Kilgore, 167
Wn.2d 28, 38-39, 216 P.3d 393 (2009). A trial court abuses its discretion when it fails to
1
Because we remand for the resentencing court to consider whether to exercise its discretion to
resentence McEvoy, we do not reach McEvoy’s arguments that the trial court’s reasons for
imposing an exceptional sentence were not substantial and compelling and that the exceptional
sentence was clearly excessive.
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No. 50026-4-II
recognize its discretion. State v. McFarland, 189 Wn.2d 47, 58, 399 P.3d 1106 (2017); see In re
Pers. Restraint of Mulholland, 161 Wn.2d 322, 334, 166 P.3d 677 (2007).
A trial court’s discretion on remand is limited by the scope of the appellate court’s
mandate. Kilgore, 167 Wn.2d at 42. When the appellate court’s opinion states that the court
orders remand for resentencing, the resentencing court has broad discretion to resentence on all
counts. State v. Toney, 149 Wn. App. 787, 792, 205 P.3d 944 (2009). Conversely, the
resentencing court does not have discretion to resentence on all counts “when the appellate court
remands for the trial court to enter only a ministerial correction of the original sentence.” 2 149
Wn. App. at 792.
McEvoy did not challenge his exceptional sentence in his first appeal. In the first appeal,
we determined that two of McEvoy’s convictions violated double jeopardy under the merger
doctrine. This court’s mandate ordered “remand for resentencing” consistent with the court’s
opinion. McEvoy, No. 46795-0-II, slip op. at 24-25. On remand, McEvoy argued that the
resentencing court had the discretion to reconsider his exceptional sentence for his remaining
convictions. The resentencing court declined to do so, reasoning that it was “unaware of any
case law that would indicate that I have any discretion to resentence him to anything other than
what the mandate tells me to do.” Report of Proceedings (RP) (Jan. 27, 2017) at 3.
This court’s opinion remanded McEvoy’s case for “resentencing.” The accompanying
mandate instructed the trial court to engage in further proceedings in accordance with the
2
If a trial court recognizes, but declines to exercise, its discretion on remand to reconsider an
exceptional sentence and simply corrects an original judgment and sentence, no appealable
issues remain. Kilgore, 167 Wn.2d at 40-41. In such instance, the defendant would be barred
from challenging his exceptional sentence in a second appeal by the law of the case doctrine.
See 167 Wn.2d at 41.
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No. 50026-4-II
opinion. Thus, the mandate gave the resentencing court broad authority to conduct a new
sentencing hearing. As a result, the resentencing court had the discretion to resentence McEvoy
on all counts. The resentencing court failed to recognize its discretion when it determined that it
did not have the authority to resentence McEvoy for his remaining convictions. Accordingly, the
resentencing court abused its discretion.
II. ENTRY OF WRITTEN FINDINGS AND CONCLUSIONS
McEvoy also argues that the trial court erred by failing to enter written findings and
conclusions in support of an exceptional sentence. The State concedes error. We accept the
State’s concession.
RCW 9.94A.535 requires that whenever an exceptional sentence is imposed, “the court
shall set forth the reasons for its decision in written findings of fact and conclusions of law.”
Remand is required when a trial court fails to enter written findings of fact and conclusions of
law to support an exceptional sentence. State v. Friedlund, 182 Wn.2d 388, 395, 341 P.3d 280
(2015). Here, the trial court failed to enter written findings and conclusions to support
McEvoy’s exceptional sentence. As a result, we remand and instruct the court to enter written
findings and conclusions if it exercises its discretion to either not resentence McEvoy or
resentence McEvoy and impose an exceptional sentence.
We remand for the resentencing court to consider whether to exercise its discretion to
resentence McEvoy for his remaining convictions. Should the court decline to exercise its
discretion, or exercise its discretion and impose an exceptional sentence, we further instruct the
resentencing court to enter findings of fact and conclusions of law supporting the exceptional
sentence.
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No. 50026-4-II
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.
Worswick, J.
We concur:
Maxa, C.J.
Lee, J.
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