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.
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 In the unpublished portion we hold against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
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an unpublished opinion that the State failed to present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.
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 In our unpublished opinion addressing both the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
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.
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.
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.
7.2 and PRPs
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.
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.
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.
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.
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