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State v. Jones

Supreme Court of Washington, En Banc

November 26, 2014

The State of Washington, Petitioner,
v.
John A. Jones III, Respondent

Argued October 14, 2014.

Appeal from Snohomish County Superior Court. No. 07-1-01849-7. Honorable George N Bowden.

Mark K. Roe, Prosecuting Attorney, and Mary K. Webber, Deputy, for petitioner.

Thomas M. Kummerow (of Washington Appellate Project ), for respondent.

AUTHOR: Justice Charles W. Johnson. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggings, Justice Steven C. Gonzá lez, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.

OPINION

Page 279

C. Johnson, J.

[182 Wn.2d 3] ΒΆ 1 This case involves whether a trial court must give effect to the provision in RCW 9.94A.530(2) that permits both parties to present additional relevant evidence of criminal history at resentencing following remand from appeal or collateral attack. In this case, the trial judge concluded that the " no second chance" rule we announced in State v. Ford [1] was based on constitutional principles of due process and therefore the legislature was not free to alter this rule. The Court of Appeals affirmed. Because the " no second chance" rule was based on judicial economy, not due process, we hold that the legislature was within its authority to alter our rule and that the statutory remand provision controls. We reverse.

[182 Wn.2d 4]Facts and Procedural Posture

¶ 2 John A. Jones III's 2008 criminal conviction for second degree assault is not in dispute. [2] At his first sentencing hearing, the State presented evidence of several California convictions, including one count of murder with a firearm, two counts of attempted murder with a firearm, and one count of assault with a firearm. The trial court calculated Jones's offender score as 6 by including the murder and attempted murder convictions, and sentenced Jones to an exceptional sentence of 120 months. Jones appealed, and the Court of Appeals vacated his sentence because the trial court had failed to perform a comparability analysis of his California convictions. On remand for resentencing, the State supplemented the record, over Jones's objection, with new evidence of Jones's murder and attempted murder convictions and an additional drug conviction. After performing a comparability analysis on these convictions, the trial court recalculated Jones's offender score as 7 (now with the

Page 280

additional drug conviction). The court again sentenced Jones to an exceptional sentence of 120 months.

¶ 3 Jones appealed again. The Court of Appeals vacated his sentence, this time because the State failed to establish Jones's convictions by a preponderance of the evidence when it presented a copy of a probation report, which the State had represented to the court as being a plea colloquy. At the third sentencing hearing, at issue here, the State offered an uncertified copy of a California plea colloquy in order to establish Jones's prior convictions. It also moved for a short continuance to obtain a certified copy. The trial court, however, denied the motion, concluding that based on our holdings in State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009) and State v. Hunley, 175 Wn.2d 901, 287 P.3d 584 [182 Wn.2d 5] (2012), a trial court could not permit the State to supplement the record on resentencing. Verbatim Report of Proceedings (Second Resentencing) at 9 (" In reading Mendoza as well as Hunley, it's my conclusion that the State, in this case, does not get another bite at the apple." ). Without the California convictions, Jones's offender score was calculated as 1 and he was sentenced to an exceptional sentence of 60 months. A few days later, the State filed a certified copy of the plea transcript that allegedly establishes the comparability of the California convictions.

¶ 4 The State appealed. In affirming the trial court, the Court of Appeals adhered to the " no second chance" rule we announced in Ford --that the State may not offer new evidence at sentencing when the defendant raised an objection. The State, however, argued that the 2008 amendments to RCW 9.94A.530, which were made in direct response to our decision in Ford, permit the State to offer new evidence upon remand, regardless of defense objection. The Court of Appeals disagreed. It held it was " not in a position to declare that the 'no second chance' rule set forth in Ford is no longer in effect. Once the Supreme Court has decided an issue of state law, that interpretation is binding on all lower courts until it is overruled by the Supreme Court." State v. Jones, noted at 175 Wn.App. 1074, 2013 WL 4069516, at *6, (citing State v. Gore, 101 Wn.2d 481, 487-88, 681 P.2d 227 (1984)). Instead, it held that " the State must first convince the ...


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