FILED
MAY 2, 2019
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. 33313-2-III
Respondent, )
)
v. )
)
IGNACIO * COBOS, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Ignacio Cobos, representing himself, appeals from a resentencing.
Although most of his issues are not properly before us, we agree that resentencing is
again required because parts of the sentence exceed the statutory maximum available to
the trial court. Accordingly, we reverse and remand for a new sentencing.
PROCEDURAL HISTORY
A jury convicted Mr. Cobos in 2011 of delivery of methamphetamine, possession
of methamphetamine, and voyeurism. This court affirmed his convictions, but reversed
and remanded for resentencing. State v. Cobos, 178 Wn. App. 692, 315 P.3d 600 (2013).
The Washington Supreme Court affirmed the resentencing directive. State v. Cobos, 182
Wn.2d 12, 338 P.3d 283 (2014).
No. 33313-2-III
State v. Cobos
At resentencing, the trial court calculated the offender score at 9+ on all counts,
and imposed concurrent confinement terms of 120 months on the delivery charge, 24
months on the possession count, and 57 months on the voyeurism charge. The court also
imposed concurrent community custody terms of 12 months, 12 months, and 36 months,
respectively.
Mr. Cobos again appealed to this court. A lengthy series of motions and a stay of
proceedings delayed resolution of this appeal. A panel considered the case without
hearing argument.
ANALYSIS
Little discussion is necessary because we agree with the parties that resentencing
is again required. We also will briefly explain why Mr. Cobos does not get to raise
arguments unrelated to the resentencing proceeding and then consider issues that might
again arise at the next sentencing.
The combined terms of incarceration and community custody cannot exceed the
statutory maximum sentence for a crime. RCW 9.94A.505(5). The maximum sentence
for delivery of methamphetamine is 10 years. RCW 69.50.401(2)(b). The maximum
sentence for voyeurism is five years. Former RCW 9A.44.115(3) (2003); RCW
9A.20.021(1)(c).
Here, the combined sentences of imprisonment and community custody exceed the
maximum terms of the delivery and voyeurism sentences. Resentencing is required on
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No. 33313-2-III
State v. Cobos
those two counts. Resentencing is not required on the possession count. RCW
9.94A.171(3)(a).
Mr. Cobos also attempts to raise numerous claims attacking the validity of his
conviction. However, those claims are no longer available to him. He had the
opportunity to raise them in his first appeal, but either failed to do so or was unsuccessful
in his arguments. They cannot now be considered. State v. Fort, 190 Wn. App. 202, 228,
360 P.3d 820 (2015) (“Any issue that could have been but was not raised on appeal is
waived on a remand.”). This rule applies even to issues of constitutional magnitude.
State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894 (1983). “The rule prohibiting raising an
issue for the first time on remand should apply with added vigor when the appeals court
remanded for resentencing only and the new issue does not impact sentencing.” Fort,
190 Wn. App. at 229.
The parties also debate some issues that may arise at the resentencing; we
summarily address three of them. (1) If Mr. Cobos is indigent at the resentencing, then
the court will not be able to assess the criminal filing fee. State v. Ramirez, 191 Wn.2d
732, 426 P.3d 714 (2018). (2) Mr. Cobos challenges the court’s prohibition on alcohol
use during community custody, arguing that it is not a crime-related prohibition.
However, the sentencing judge is empowered to prohibit alcohol consumption regardless
of whether or not alcohol was involved in the crime. RCW 9.94A.703(3)(e). (3) Lastly,
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No. 33313-2-III
State v. Cobos
Mr. Cobos contends that the trial court erred in imposing a ten year no contact order. A
crime-related prohibition, including a no contact order, may be imposed up to the
maximum term for the offense. State v. Armendariz, 160 Wn.2d 106, 120, 156 P.3d 201
(2007). Because the voyeurism conviction carries a five year maximum term, the length
of the no contact order should not exceed five years.
Remanded for resentencing.
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.
WE CONCUR:
Lawrence-Berrey,
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