State v. Kilgore

Armstrong, J.

¶31 (dissenting) — I respectfully dissent for the following reasons: (1) the majority addresses the substantive issue raised on appeal and then dismisses the appeal, (2) the majority applies an incorrect legal standard and reaches the wrong result in resolving that issue, and (3) the majority incorrectly interprets the relevant case law in support of its alleged dismissal of this appeal.

¶32 Before explaining these points, I find it necessary to address the trial court’s attempt to enter its 2005 order, stating that Kilgore’s judgment and sentence was final when the Supreme Court issued its mandate in October 2002 nunc pro tunc to November 1, 2002. The majority assumes without deciding that this order was invalid but fails to see how that invalidity affects its rationale.

¶33 The invalid nunc pro tunc order is relevant because it introduces the faulty premise on which the majority *831opinion rests: i.e., that Kilgore’s judgment and sentence was final in 2002, well before Blakely was filed. In the hope of avoiding similar orders and the confusion they create, I set forth a brief explanation of the applicable law.

¶34 The purpose of a nunc pro tunc order is to record some prior act of the court that was actually performed but not then entered into the record. State v. Nicholson, 84 Wn. App. 75, 78-79, 925 P.2d 637 (1966). A nunc pro tunc order is not a proper means to remedy omissions. State v. Rosenbaum, 56 Wn. App. 407, 411, 784 P.2d 166 (1989); see also State v. Smissaert, 103 Wn.2d 636, 641, 694 P.2d 654 (1985) (a retroactive entry is proper to rectify the record as to acts that did occur but not as to acts that should have occurred).

¶35 The nunc pro tunc order entered here was issued to remedy an omission; i.e., the fact that Kilgore’s judgment and sentence was not amended directly after his appeal was mandated. There was no hearing on November 1, 2002, and the nunc pro tunc order that purports to record an act performed on that date is invalid, at least insofar as its retroactivity is considered. (The second 2005 order, which corrected Kilgore’s judgment and sentence, was not entered nunc pro tunc.) Both of the trial court’s orders therefore must be evaluated as of their 2005 filing dates, a requirement that defeats the possibility that Kilgore’s sentence was final in 2002.

¶36 The key in this appeal is whether the trial court erred in holding that it was not bound by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), when it amended Kilgore’s judgment and sentence on October 27, 2005. The majority observes that Kilgore has never challenged any of the exceptional sentence aggravating factors or their applicability, either in his first appeal or on remand. The majority then holds that to argue that Blakely applies on remand,

[Kilgore] would have to show either some flaw in the predicate facts underlying his original exceptional sentences or that the *832previous appellate decisions questioned the validity of his original . . . sentences for [his] five affirmed convictions. But Kilgore argues neither, and the previous appellate and Supreme Court decisions evince none.

Majority at 826 n.8.

¶37 In order for previous appellate decisions to have questioned Kilgore’s sentences, he would have had to challenge those sentences on appeal or in seeking discretionary review. The majority thus holds that a party may take advantage of a new rule of criminal procedure only if the party has raised an argument related to that rule in an earlier proceeding.13 The majority cites no authority for this proposition, and with good reason. The law in Washington is that a new rule for the conduct of criminal prosecutions applies retroactively “to all cases, state or federal, pending on direct review or not yet final.” In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 (1992) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)); see also Derman v. United States, 298 F.3d 34, 39 (1st Cir. 2002) (if conviction is not final when United States Supreme Court announces new rule of criminal procedure, then inferior courts must apply that rule to defendant’s case).

¶38 In accord with that rule, this court has stated repeatedly that the key to granting sentencing relief under Blakely is whether a case was final when Blakely was issued. See State v. Monroe, 126 Wn. App. 435, 453 n.3, 109 P.3d 449 (2005) (.Blakely applies to all cases in which review was not final on June 24, 2004), overruled on other grounds by State v. Clarke, 156 Wn.2d 880, 134 P.3d 188 (2006); State v. Brundage, 126 Wn. App. 55, 64 n.11, 107 P.3d 742 (2005) (same), review denied, 157 Wn.2d 1017 (2006); State v. Van Buren, 123 Wn. App. 634, 639, 98 P.3d 1235 (2004) *833(same), overruled on other grounds by State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005). There is no need for the defendant to have somehow “triggered” Blakely relief by complaining of his exceptional sentence beforehand. The only requirement is that his case was not final as of June 24, 2004. See In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 147 P.3d 573 (2006) (VanDelft appealed his convictions but not his sentence, but because his convictions were not final when Blakely was filed, he was entitled to relief based on Blakely), cert. denied, 127 S. Ct. 2876 (2007); State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005) (defendant did not challenge exceptional sentence on appeal or in petition for review but was allowed to amend the petition to challenge his sentence after Blakely was filed).

¶39. Indeed, the Washington Supreme Court expressly rejected the majority’s approach in St. Pierre. The State argued there that the petitioner’s conviction was final as to the issue raised, despite recent case law in his favor, because he had failed to pursue that issue on direct appeal. St. Pierre, 118 Wn.2d at 327. In response, the court quoted the definition of finality given in Griffith:

“By ‘final,’ we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.”

St. Pierre, 118 Wn.2d at 327 (quoting Griffith, 479 U.S. at 321 n.6). The St. Pierre court interpreted that language to contemplate the finality of the case as a whole, and it rejected the notion that an issue could become final for the purposes of retroactivity analysis before the case as a whole became final. “A contrary approach would encourage parties to maintain seemingly frivolous claims on appeal in the hope another decision may announce a new rule. Such an approach would result in an inefficient use of judicial resources and distract parties from issues of consequence.” St. Pierre, 118 Wn.2d at 327. The issue is not whether a party has somehow preserved the right to claim relief under a new rule of law but whether his case was final when that *834new rule was announced. See St. Pierre, 118 Wn.2d at 327; see also Derman, 298 F.3d at 42 (because new rule was announced before petitioner’s case became final, it “follows inexorably” that the rule applies to his case).

¶40 Accordingly, the question here is whether Kilgore’s conviction was final when Blakely was issued on June 24, 2004. I have found no Washington cases discussing the effect of a partial reversal and remand on a judgment’s finality, particularly where a new rule of criminal procedure is at issue. But see In re Pers. Restraint of Skylstad, 160 Wn.2d 944, 946, 162 P.3d 413 (2007) (holding that judgment is not final until both the conviction and sentence are final). The State cites a single case holding that the right to appeal is exhausted when the appellate court issues its mandate. See State v. Hunt, 76 Wn. App. 625, 629, 886 P.2d 1170 (1995). In Hunt, however, the defendant’s conviction and sentence were affirmed on appeal, and its brief discussion of finality is of little guidance given the facts here.

¶41 More pertinent is the Second Circuit’s decision in Burrell v. United States, 467 F.3d 160 (2d Cir. 2006), cert. denied, 127 S. Ct. 2031 (2007). Burrell was convicted of conspiring to distribute drugs and organizing a continuing criminal enterprise (CCE). In 2000, the district court imposed two concurrent life sentences, based in part on federal sentencing requirements regarding the CCE charge. Burrell, 467 F.3d at 161-62. The Second Circuit affirmed the CCE conviction but vacated the conspiracy conviction and remanded for correction of the judgment to reflect that dismissal. The court issued its mandate in 2002, and the Supreme Court denied Burrell’s petition for certiorari in 2003. Burrell, 467 F.3d at 162.

¶42 By order dated March 29, 2005, the district court directed the court clerk to file an amended judgment reflecting the conspiracy claim’s dismissal. When Burrell argued that the 2005 order should be corrected in light of United States v. Booker, 543 U.S. 220,125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the district court rejected his argument. Burrell, 467 F.3d at 162. (.Booker held that Blakely applied *835to the federal sentencing guidelines, ultimately rendering them advisory rather than mandatory. Booker, 543 U.S. at 245-46.)

¶43 Burrell appealed, arguing that Booker applied to his case because his judgment was not yet final when it was decided. Burrell, 467 F.3d at 162-63. His appeal required the Second Circuit to determine, for the first time, when a criminal judgment becomes final for the purposes of retroactivity of a new constitutional rule when it affirms one conviction and remands for dismissal of another. Burrell, 467 F.3d at 164. The court noted that with its mandate, it had directed the district court to undertake a single, nondiscretionary act: to correct the judgment to reflect the dismissal of the conspiracy conviction. Burrell, 467 F.3d at 165-66. The court had affirmed Burrell’s sentence because the guidelines mandated a life sentence based on the CCE conviction alone. Because the remand was strictly ministerial, Burrell’s conviction became final either when the Supreme Court denied his petition for a writ of certiorari or when his time for filing a certiorari petition expired. Burrell, 467 F.3d at 166. Therefore, Burrell’s case was final before Booker was decided. Burrell, 467 F.3d at 167. The court framed its holding regarding finality as follows:

Under our holding today, a criminal judgment is final when we reverse some portion of the judgment and remand to the district court only if we affirm both the adjudication of guilt and the sentence on at least one count, and our remand is for the strictly ministerial task of correcting the judgment to reflect the dismissal of one or more counts, whose dismissal must not have affected the sentence, as indicated by our affirmance. We fail to see how a mandate expressed in such categorical, final terms could be construed to leave matters open for the district court to decide.

Burrell, 467 F.3d at 169.

¶44 In so holding, the Second Circuit rejected the Ninth Circuit’s analysis in United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000). Colvin had to determine when a judgment *836becomes final for purposes of the statute of limitations governing habeas corpus petitions when an appellate court “partially affirms and partially reverses a conviction and remands to the district court with instructions to amend the judgment.” Colvin, 204 F.3d at 1222. The Ninth Circuit ultimately concluded that if the appellate court reverses any portion of a conviction or sentence and remands to the district court, the judgment is not final until the district court has acted on remand and the time has passed for appealing that action. Colvin, 204 F.3d at 1225-26.

¶45 The Ninth Circuit subsequently applied Colvin to a set of facts more similar to those presented here. See United States v. LaFromboise, 427 F.3d 680 (9th Cir. 2005). A jury convicted LaFromboise of five drug convictions and three firearms convictions, and he received a 720-month sentence (360 months for the drug counts and 360 months for the firearms counts). LaFromboise, 427 F.3d at 681. On appeal, the Ninth Circuit vacated the firearms convictions and remanded for retrial. The government moved to dismiss the firearms counts, however, and the district court granted the motion in 1997. The district court did not conduct a new sentencing hearing on the affirmed counts or enter an amended judgment in light of the dismissed counts. Thus, when LaFromboise was issued, the only judgment of record still provided for the original 720-month sentence and still included convictions on each firearm count. LaFromboise, 427 F.3d at 682.

¶46 Citing Colvin as support, the Ninth Circuit concluded that without an amended judgment, LaFromboise’s conviction was not yet final. LaFromboise, 427 F.3d at 683. The court noted that its mandate in the prior appeal clearly contemplated further trial proceedings, and it added that implicit in that mandate was the opportunity for resentencing. LaFromboise, 427 F.3d at 684. Although the trial court was bound by then-mandatory sentencing guidelines in its original sentencing decision, Booker would apply on resentencing to free the court from those guidelines. LaFromboise, 427 F.3d at 685 n.6. That new sentence would then be appealable. LaFromboise, 427 F.3d at 685.

*837¶47 The dissenting judge disagreed that an amended judgment was necessary to achieve finality, reading Colvin to support the conclusion that finality was achieved when the district court acted on the court’s mandate by dismissing the firearms charges:

Colvin’s holding hinged on the finality of the proceedings, not on the fact that finality was achieved through an amended judgment.
. . . We explained that when we reverse any portion of a conviction or sentence and remand to the district court, the judgment of conviction does not become final until the court has acted on remand and the time has passed for appealing the district court’s action.

LaFromboise, 427 F.3d at 687 (Callahan, J., dissenting) (citing Colvin, 204 F.3d at 1225-26).

¶48 Kilgore’s judgment is not final under any interpretation of Burrell or Colvin. Following our reversal of two of Kilgore’s convictions, we remanded for further proceedings. Our remand was necessarily open-ended, since we had no way of predicting whether the State would in fact retry Kilgore on those counts and thus no way of directing how his sentence should be modified. Our remand language is clearly distinguishable from that used in both Burrell and Colvin. Under Burrell, Kilgore’s case did not become final when the mandate was filed because our remand was not ministerial in nature, thus rendering the trial court’s subsequent actions appealable. Under Colvin, Kilgore’s case did not become final when the mandate was filed because our remand required the trial court to act and Kilgore again was entitled to appeal that action.

¶49 The majority notes my reliance on intermediate federal case law for this portion of my dissent. Our Supreme Court cited similar case law, including LaFromboise, to support its holding that a judgment is not final until the conviction and sentence are both final. See Skylstad, 160 Wn.2d at 952 n.5. In doing so, the court quoted with approval the following statement from Richardson v. Gramley, 998 *838F.2d 463, 465 (7th Cir. 1993): “ ‘Ajudgment is not final if the appellate court has remanded the case to the lower court for further proceedings, unless the remand is for a purely “ministerial” purpose, involving no discretion, such as recomputing prejudgment interest according to a set formula.’ ” Skylstad, 160 Wn.2d at 952 n.5.

¶50 The majority acknowledges that our remand in this case was open-ended and left the trial court with discretion to resentence Kilgore. But, in an astonishing grant of authority, the majority states that our remand became ministerial when the trial court decided not to resentence Kilgore and not to provide him relief under Blakely. The majority’s analysis alters the law governing the finality of decisions and the applicability of new rules of criminal procedure by giving the trial courts of this state the power to determine whether a defendant may take advantage of a decision rendered by the United States Supreme Court. Were it not for the fact that the majority’s entire discussion of this issue is dictum, this would be an alarming development indeed.

¶51 The characterization of our remand order depends on our language in the context of our decision, not on what the trial court does in response to our language, particularly where, as here, the trial court attempted to foreclose Kilgore’s Blakely rights with a nunc pro tunc order entered after Blakely, purporting to rule that Kilgore’s case was final before Blakely. The majority concedes that the trial court had the power to resentence Kilgore, and if it had the power, our remand order can not be construed as ministerial. The trial court’s exercise of discretion in not altering Kilgore’s sentence simply demonstrates again that Kilgore’s case was not yet final. Because it was not final when Blakely was filed, Kilgore is entitled to relief thereunder.

¶52 Necessary to this holding is the conclusion, contrary to the majority’s, that Kilgore’s appeal is properly before *839us.14 Having disposed of the essential issue in the case, the majority then dismisses the appeal. The majority does so after citing but not heeding the language from Division One’s opinion in State v. Barberio, 66 Wn. App. 902, 903, 833 P.2d 459 (1992), aff’d, 121 Wn.2d 48, 846 P.2d 519 (1993): “We grant the State’s motion [to dismiss the second appeal] as to those issues which could have been raised in the first appeal, and deny the motion as to those issues which could not have been raised at that time.” (Emphasis added.) Barberio had appealed his convictions but not his exceptional sentences in his first appeal. After Division One reversed one conviction and the trial court imposed the same sentence on the remaining conviction on remand, the defendant appealed again. During that second appeal, Division One considered whether the trial court should have reduced the exceptional sentence in proportion to the reduced offender score and standard range. Barberio, 66 Wn. App. at 905.

¶53 Somewhat similar circumstances are presented here. On Kilgore’s first appeal, he challenged his convictions but not his exceptional sentences. This court reversed some of his convictions, and the trial court eventually imposed the same exceptional sentences on his remaining convictions despite the reduction in his offender scores and, more significantly, despite the issuance of Blakely. Kilgore could not have anticipated the trial court’s 2005 ruling in his first appeal, and he is entitled to challenge it now.

Review granted at 164 Wn.2d 1001 (2008).

With regard to taking advantage of Blakely in particular, the majority adds that Kilgore must show “some flaw in the predicate facts.” Majority at 826 n.8. But if Kilgore’s case was not final when Blakely was filed, his receipt of an exceptional sentence based on facts a judge rather than a jury found entitles him to relief. See State v. Hughes, 154 Wn.2d 118, 134, 156, 110 P.3d 192 (2005).

The majority dismisses Kilgore’s appeal as untimely as well as improper. Kilgore filed his notice of appeal within 30 days of the trial court’s October 27 orders, in compliance with RAP 5.2(a). I do not see how his appeal could have been more timely.