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State v. Contreras-Rebollar

Court of Appeals of Washington, Division 2

July 3, 2018

STATE OF WASHINGTON, Respondent,
v.
ADRIAN CONTRERAS-REBOLLAR, Appellant.

          Bjorgen, J.

         Adrian Contreras-Rebollar appeals from the sentence imposed following his resentencing hearing, asserting that the sentencing court erred by imposing a $200 criminal filing fee as a mandatory legal financial obligation (LFO). In his statement of additional grounds for review (SAG), Contreras-Rebollar also contends that (1) the sentencing court lacked authority to resentence him under RAP 7.2(e), (2) the judge presiding over his resentencing hearing violated Code of Judicial Conduct(3)(D)(1) (CJC) and the appearance of fairness doctrine by denying his recusal motion, (3) the community custody provisions of RCW 9.94A.701 as applied to his sentence violate the constitutional prohibition on ex post facto laws, and (4) the sentencing court's finding that he was on community custody during his offense violated his jury trial right.

         In the published portion of this opinion, we hold that the sentencing court had the authority to resentence Contreras-Rebollar under RAP 7.2(e), but that it violated the constitutional prohibition against ex post facto laws by imposing a fixed 36-month community custody term under RCW 9.94A.701. In the unpublished portion we hold against Contreras-Rebollar's other challenges to his sentence.

          Therefore, we vacate the community custody portion of Contreras-Rebollar's sentence and remand for imposition of a community custody term consistent with the law in effect when he committed his offenses. We affirm the remainder of his sentence.

         FACTS

         In February 2007, Contreras-Rebollar was convicted of two counts of first degree assault and one count of second degree unlawful possession of a firearm. In Contreras-Rebollar's first appeal of his 2007 convictions and sentence, we held in an unpublished opinion that the State failed to present sufficient evidence at sentencing supporting its allegations of Contreras-Rebollar's criminal history and community custody status at the time of his offenses. State v. Contreras-Rebollar, noted at 149 Wn.App. 1001 (2009). Accordingly, we reversed Contreras-Rebollar's sentence and remanded for resentencing.

         Following his 2010 resentencing, Contreras-Rebollar again appealed his sentence and also filed a personal restraint petition (PRP). State v. Contreras-Rebollar, noted at 169 Wn.App. 1001 (2012). In our unpublished opinion addressing both the direct appeal and PRP, we rejected Contreras-Rebollar's claim that the resentencing court's community custody finding violated his Sixth Amendment jury trial right. Contreras-Rebollar, noted at 169 Wn.App. 1001. However, we also held that

the record suggests that the resentencing court may not have taken into account any good time credit to which Contreras-Rebollar may have been entitled and that might have affected its determination of whether he had been on community custody at the time he committed the charged crimes.

Contreras-Rebollar, noted at 169 Wn.App. 1001, 2012 WL 2499369, at *8. We therefore again remanded for resentencing, directing the State to "put on the record all facts pertinent to Contreras-Rebollar's community custody status at the time he committed the charged crimes, including any good time credit calculation to which he may have been entitled." Contreras-Rebollar, 2012 WL 2499369, at *8.

         Contreras-Rebollar was again resentenced on March 1, 2013. However, the sentencing court did not have authority to resentence Contreras-Rebollar on that date because we had not yet issued the mandate from our 2012 opinion. We issued our mandate from the 2012 opinion on August 15, 2013. Contreras-Rebollar filed a supplemental PRP, which we denied in an unpublished opinion in 2014. State v. Contreras-Rebollar, No. 41672-7-II, slip op at 182 Wn.App. 1046 (Wash.Ct.App. Aug. 5, 2014). We issued the mandate from our 2014 unpublished opinion on January 9, 2015.

         The sentencing court again resentenced Contreras-Rebollar in April 2016, which resentencing is the subject of his current appeal. Following the 2016 resentencing hearing, the sentencing court found that Contreras-Rebollar was on community custody at the time that he committed his offenses. The sentencing court stated that it would impose as LFOs a $500 crime victim penalty assessment, a $100 DNA (deoxyribonucleic acid) testing fee, and a $200 criminal filing fee. Defense counsel requested the sentencing court to waive the $200 criminal filing fee based on Contreras-Rebollar's inability to pay the fee, asserting that it was within the sentencing court's discretion to do so. The sentencing court rejected defense counsel's request and thereafter imposed the above LFOs and the same 380-month incarceration term as it had imposed in 2007. The court also imposed a fixed community custody term of 36 months. Contreras-Rebollar appeals from his sentence.

         ANALYSIS

         I. RAP 7.2 and PRPs

         Contreras-Rebollar argues that the sentencing court lacked authority to resentence him under RAP 7.2 because he had a PRP pending with our court on the date of his resentencing. Because the filing of a PRP does not divest the superior court of its authority to act in a case under RAP 7.2, we disagree.

         RAP 7.2 provides in relevant part:

After review is accepted by the appellate court, the trial court has authority to act in a case only to the extent provided in this rule, unless the appellate court limits or expands that authority as provided in rule 8.3.
. . . . The trial court has authority to hear and determine (1) postjudgment motions authorized by the civil rules, the criminal rules, or statutes, and (2) actions to change or modify a decision that is subject to modification by the court that initially made the decision. The postjudgment motion or action shall first be heard by the trial court, which shall decide the matter. If the trial court determination will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision. A party should seek the required permission by motion.

(Emphasis added.)

         In a colloquial sense of the word, an appellate court considering a PRP may be said to "review" a trial court's decision. However, RAP 7.2 is clear that it is confined to situations where review has been "accepted" by the appellate court. Title 6 of the RAPs provides three methods through which our court "accepts review" of a trial court's or administrative agency's decision. RAP 6.1 states that "[t]he appellate court 'accepts review' of a trial court decision upon the timely filing in the trial court of a notice of appeal from a decision which is reviewable as a matter of right." RAP 6.2 also allows appellate court review of a trial court decision in some circumstances by granting a motion for discretionary review. Finally, RAP 6.3 provides that "[t]he appellate court accepts direct review of a final decision of an administrative agency in an adjudicative proceeding . . . by entering an order or ruling accepting review." None of these provisions speak to the acceptance of review of a PRP.

         A PRP, in contrast, constitutes an original action in the appellate court. RAP 16.1. Although an appellate court conducts a "preliminary review" on receipt of a PRP and may dismiss a PRP in some circumstances, there is no threshold requirement that the appellate court accept review in order to proceed. RAP 16.8.1.

         Read together, RAP Titles 6 and 16 leave no room for quibble: a PRP proceeds without the need for acceptance of review by the appellate court. With that, the filing of a PRP does not divest the trial court of authority to act in a case under ...


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