Filed
Washington State
Court of Appeals
Division Two
September 4, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51342-1-II
Respondent, UNPUBLISHED OPINION
v.
TYLER DAVID ROBB,
Appellant.
GLASGOW — In a prior appeal, we affirmed Tyler David Robb’s second degree child rape
conviction, but we vacated his second degree child molestation conviction based on double
jeopardy. On remand, the trial court vacated the second degree child molestation conviction but
did not resentence Robb. Robb now appeals his sentence following remand, arguing that the trial
court failed to recognize its authority to resentence him on his remaining second degree child
rape count. Robb also argues that he was provided ineffective assistance of counsel at the
resentencing hearing because his attorney failed to request a lower sentence on remand. We
affirm.
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No. 51342-1-II
FACTS
A jury found Robb guilty of second degree child rape and second degree child
molestation based on a single incident involving his 13 year old stepdaughter. At sentencing, the
trial court determined that both counts encompassed the same criminal conduct and counted as
one crime for purposes of calculating Robb’s offender score. The trial court calculated Robb’s
offender score as 0 and sentenced him to 90 months of total confinement.
Robb appealed, and we held that his convictions for both child rape and child molestation
violated double jeopardy. We also held that the trial court erred in imposing two sentencing
conditions that were not crime related.
We affirmed Robb’s second degree child rape conviction and ordered “remand for the
trial court to vacate Robb’s conviction for second degree child molestation and to strike the
sentencing conditions regarding controlled substances and sexually explicit material.” Clerk’s
Papers (CP) at 30. We also issued a mandate “for further proceedings in accordance with the
attached true copy of the opinion.” CP at 1.
On remand, the State presented an order amending Robb’s felony judgment and sentence
to reflect this court’s decision. The State argued to the trial court that “the remaining count of
rape [of a] child in the second degree is the one on which the sentence now rests, but it doesn’t
change anything else about the terms or length of the sentence.” Verbatim Report of
Proceedings (VRP) at 3.
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In response, Robb’s counsel stated: “I believe the order is consistent with the court of
appeals decision.” VRP at 3. Counsel also informed the trial court that Robb wanted to be
resentenced, but “I don’t think I have the authority to request that.” VRP at 4. The trial court
ruled that it had “nothing to do at this point,” and that the remaining count of second degree child
rape was the conviction on which the sentence rested. See VRP at 3-4.
The trial court entered an order vacating Robb’s second degree child molestation
conviction and striking the two sentencing conditions related to controlled substances and
sexually explicit material. Robb appeals.
ANALYSIS
Robb argues that the trial court abused its discretion on remand because it failed to
recognize its discretion to resentence him on his remaining second degree child rape count. We
disagree.
A trial court abuses its discretion if it categorically refuses to exercise its discretion or
fails to recognize its discretion. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017),
amended on recons., 2019 WL 1968363 (June 4, 2019); State v. Grayson, 154 Wn.2d 333, 342,
111 P.3d 1183 (2005). A trial court’s discretion to resentence on remand is constrained by the
scope of our court’s mandate. State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009). When
our opinion orders remand for resentencing, the resentencing court has broad discretion to
resentence the defendant on all remaining counts. State v. Toney, 149 Wn. App. 787, 792, 205
P.3d 944 (2009). However, the resentencing court does not retain the same discretion when our
court remands to the trial court with direction that leaves no room for exercise of independent
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No. 51342-1-II
judgment. State v. Schwab, 134 Wn. App. 635, 645, 141 P.3d 658 (2006), aff’d, 163 Wn.2d 664,
185 P.3d 1151 (2008).
Here, our opinion specifically and narrowly instructed the trial court on remand to
“vacate Robb’s conviction for second degree child molestation and to strike the sentencing
conditions regarding controlled substances and sexually explicit material.” CP at 30. This
language does not suggest that the trial court had broad discretion to conduct an entirely new
sentencing hearing on Robb’s remaining count. And nothing in our opinion suggests that our
court intended to grant the trial court such authority on remand.
Robb relies on Kilgore to argue that even absent an explicit remand for resentencing,
remand can be considered “open-ended” enough to allow the trial court discretion to resentence.
Br. of Appellant at 4-5; Kilgore, 167 Wn.2d 28. But Kilgore is distinguishable. In Kilgore, the
remand was “for further proceedings” without limitation because in that case, the defendant
could have been retried on two counts. Id. at 34. In this case, we remanded only to “vacate
Robb’s conviction” on one count and “to strike [certain] sentencing conditions.” CP at 4. When
our court remands for resentencing, it says so explicitly. See, e.g., Toney, 149 Wn. App. at 792.
Accordingly, the trial court correctly interpreted its authority under our mandate and its
ruling was not an abuse of discretion.
Robb also argues that his counsel was ineffective for failing to argue for a lower sentence
following remand. But because our court’s remand instructions did not authorize resentencing,
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Robb’s counsel was not ineffective for failing to request it.
We affirm.
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.
Glasgow, J.
We concur:
Melnick, P.J.
Sutton, J.
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