IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint No. 78242-8-I of DIVISION ONE
DUNG HOANG LE, UNPUBLISHED OPINION
Petitioner. FILED: January21, 2020
CHUN, J. — In 1993, a jury convicted Dung Hoang Le of first degree felony
murder and, in the alternative, second degree intentional murder. In this
personal restraint petition (PRP), Le argues that the trial court’s inclusion of the
alternative conviction violates his right to be free of double jeopardy. He
contends we should vacate his exceptional sentence and remand for
resentencing. While the State concedes the double jeopardy violation, it asserts
that we should not disturb Le’s exceptional sentence. We accept the State’s
concession and remand to the trial court to vacate the second degree intentional
murder conviction and to strike any reference to it in Le’s Judgment and
Sentence and the trial court’s Findings of Fact and Conclusions of Law on
Imposition of Exceptional Sentence (FFCL). But because the record clearly
indicates that the trial court would have imposed the same sentence even without
the alternative conviction, we decline to remand for resentencing. No. 78242-8-1/2
I. BACKGROUND
In 1993, a jury convicted Le of the murder of Mayme Lui.1 On the first
count,2 the jury convicted Le of first degree felony murder predicated on the
commission of burglary and robbery and, in the alternative, the lesser included
crime of intentional murder in the second degree.
At sentencing, Le’s standard range was 261-347 months. The court,
however, imposed an exceptional sentence of 840 months. In the Judgment and
Sentence, the “Current Offense(s)” section stated that the count I crimes were
“Murder 1st Degree and murder 2° (intentional).” The “Exceptional Sentence”
section provided that “[s]ubstantial and compelling reasons exist which justify a
sentence above/below the standard range for Count(s) I (murder 1°).” Finally,
the Judgment and Sentence provided that the court sentenced Le to 840 months
on count I and 17 months (which was within the standard range) on count 2, with
the sentences to run concurrently.
The court entered written findings in support of the exceptional sentence.
The second finding stated, “The murder victim, Mayme Lui, was particularly
vulnerable and incapable of resistance to the defendant’s attack, and the
defendant knew or should have known that fact.” It further stated that “[t]he
attack on Mayme Lui manifested deliberate cruelty and gratuitous violence to the
victim.” The second conclusion of law provided, “Particular vulnerability of the
1 We discussed the underlying facts of Le’s 1992 crime in the unpublished opinion from his direct appeal. State v. Le, noted at 82 Wn. App. 1010, 1996 WL 312492 (Le I). 2 This PRP does not raise any issues regarding count 2.
2 No. 78242-8-1/3
victim is an aggravating factor for sentencing purposes under
RCW 9.94A.390(2)(b). Deliberate cruelty to the victim is an aggravating factor
for sentencing purposes under RCW 9.94A.390(2)(a).’
Il. ANALYSIS
A. Double Jeopardy
Le argues that including his alternative conviction for second degree
intentional murder in his Judgment and Sentence violates his right to be free of
double jeopardy. The double jeopardy provisions in both our federal and state
constitutions prevent the justice system from punishing a person twice for the
same offense. State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010) (citing
U.S. CONST. amend. V; WASH. CONST. art. I, § 9). Washington case law is clear that while the State may charge and try a defendant on alternative charges,
“a defendant convicted of alternative charges may be judged and sentenced on
one only.” State v. Truiillo, 112 Wn. App. 390, 411, 49 P.3d 935 (2002).
“[W}here the jury returns a verdict of guilty on each alternative charge, the court
should enter a judgment on the greater offense only and sentence the defendant
on that charge without reference to the verdict on the lesser offense.” Trujillo,
112 Wn. App. at4ll.
The State concedes that entering judgment and sentencing Le for both
first degree felony murder and second degree intentional murder violated double
jeopardy. We accept the State’s concession and remand to the trial court to
vacate the second degree intentional murder conviction and strike any reference
to it in Le’s Judgment and Sentence and the FFCL.
3 No. 78242-8-1/4
B. Resentencing
Le next argues that the double jeopardy violation requires resentencing
because the trial court based its exceptional sentence, at least in part, on the
intentional murder conviction. The State claims in response that the record
clearly shows that the trial court would have imposed the same sentence even
without the double jeopardy violation. We agree with the State.
Generally, we must remand for resentencing when the trial court places
significant weight on an inappropriate factor when imposing an exceptional
sentence, or where some factors are inappropriate and the exceptional sentence
significantly deviates from the standard range. State v. Prvor, 115 Wn.2d 445,
456, 799 P.2d 244 (1990), overruled on other grounds by State v. Ritchie, 126
Wn.2d 388, 395, 894 P.2d 1308 (1995). But resentencing is not necessary if the
record clearly indicates that the sentencing court would have imposed the same
sentence anyway. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).
For instance, courts have declined to remand for resentencing where an
incorrectly calculated offender score did not affect the standard range. State v.
Kilgore, 141 Wn. App. 817, 824-25, 172 P.3d 373 (2007) (where appellate court
reversed two of seven convictions, trial court did not err by not resentencing on
the affirmed convictions). Courts also need not remand for resentencing of an
exceptional sentence “where the reviewing court overturns one or more
aggravating factors but is satisfied that the trial court would have imposed the
same sentence based upon a factor or factors that are upheld.” State v. Saltz,
137 Wn. App. 576, 585, 154 P.3d 282 (2007) (quoting State v. Hughes, 154
4 No. 78242-8-115
Wn.2d 118, 134, 110 P.3d 192 (2005), abrogated on other grounds by
Washington v. Recuenco, 548 U.S. 12, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006)) (though trial court improperly considered the “too lenient” factor, the
appellate court did not remand for resentencing because the record indicated
that the trial court found the rapid recidivism factor to be substantial and
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint No. 78242-8-I of DIVISION ONE
DUNG HOANG LE, UNPUBLISHED OPINION
Petitioner. FILED: January21, 2020
CHUN, J. — In 1993, a jury convicted Dung Hoang Le of first degree felony
murder and, in the alternative, second degree intentional murder. In this
personal restraint petition (PRP), Le argues that the trial court’s inclusion of the
alternative conviction violates his right to be free of double jeopardy. He
contends we should vacate his exceptional sentence and remand for
resentencing. While the State concedes the double jeopardy violation, it asserts
that we should not disturb Le’s exceptional sentence. We accept the State’s
concession and remand to the trial court to vacate the second degree intentional
murder conviction and to strike any reference to it in Le’s Judgment and
Sentence and the trial court’s Findings of Fact and Conclusions of Law on
Imposition of Exceptional Sentence (FFCL). But because the record clearly
indicates that the trial court would have imposed the same sentence even without
the alternative conviction, we decline to remand for resentencing. No. 78242-8-1/2
I. BACKGROUND
In 1993, a jury convicted Le of the murder of Mayme Lui.1 On the first
count,2 the jury convicted Le of first degree felony murder predicated on the
commission of burglary and robbery and, in the alternative, the lesser included
crime of intentional murder in the second degree.
At sentencing, Le’s standard range was 261-347 months. The court,
however, imposed an exceptional sentence of 840 months. In the Judgment and
Sentence, the “Current Offense(s)” section stated that the count I crimes were
“Murder 1st Degree and murder 2° (intentional).” The “Exceptional Sentence”
section provided that “[s]ubstantial and compelling reasons exist which justify a
sentence above/below the standard range for Count(s) I (murder 1°).” Finally,
the Judgment and Sentence provided that the court sentenced Le to 840 months
on count I and 17 months (which was within the standard range) on count 2, with
the sentences to run concurrently.
The court entered written findings in support of the exceptional sentence.
The second finding stated, “The murder victim, Mayme Lui, was particularly
vulnerable and incapable of resistance to the defendant’s attack, and the
defendant knew or should have known that fact.” It further stated that “[t]he
attack on Mayme Lui manifested deliberate cruelty and gratuitous violence to the
victim.” The second conclusion of law provided, “Particular vulnerability of the
1 We discussed the underlying facts of Le’s 1992 crime in the unpublished opinion from his direct appeal. State v. Le, noted at 82 Wn. App. 1010, 1996 WL 312492 (Le I). 2 This PRP does not raise any issues regarding count 2.
2 No. 78242-8-1/3
victim is an aggravating factor for sentencing purposes under
RCW 9.94A.390(2)(b). Deliberate cruelty to the victim is an aggravating factor
for sentencing purposes under RCW 9.94A.390(2)(a).’
Il. ANALYSIS
A. Double Jeopardy
Le argues that including his alternative conviction for second degree
intentional murder in his Judgment and Sentence violates his right to be free of
double jeopardy. The double jeopardy provisions in both our federal and state
constitutions prevent the justice system from punishing a person twice for the
same offense. State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010) (citing
U.S. CONST. amend. V; WASH. CONST. art. I, § 9). Washington case law is clear that while the State may charge and try a defendant on alternative charges,
“a defendant convicted of alternative charges may be judged and sentenced on
one only.” State v. Truiillo, 112 Wn. App. 390, 411, 49 P.3d 935 (2002).
“[W}here the jury returns a verdict of guilty on each alternative charge, the court
should enter a judgment on the greater offense only and sentence the defendant
on that charge without reference to the verdict on the lesser offense.” Trujillo,
112 Wn. App. at4ll.
The State concedes that entering judgment and sentencing Le for both
first degree felony murder and second degree intentional murder violated double
jeopardy. We accept the State’s concession and remand to the trial court to
vacate the second degree intentional murder conviction and strike any reference
to it in Le’s Judgment and Sentence and the FFCL.
3 No. 78242-8-1/4
B. Resentencing
Le next argues that the double jeopardy violation requires resentencing
because the trial court based its exceptional sentence, at least in part, on the
intentional murder conviction. The State claims in response that the record
clearly shows that the trial court would have imposed the same sentence even
without the double jeopardy violation. We agree with the State.
Generally, we must remand for resentencing when the trial court places
significant weight on an inappropriate factor when imposing an exceptional
sentence, or where some factors are inappropriate and the exceptional sentence
significantly deviates from the standard range. State v. Prvor, 115 Wn.2d 445,
456, 799 P.2d 244 (1990), overruled on other grounds by State v. Ritchie, 126
Wn.2d 388, 395, 894 P.2d 1308 (1995). But resentencing is not necessary if the
record clearly indicates that the sentencing court would have imposed the same
sentence anyway. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).
For instance, courts have declined to remand for resentencing where an
incorrectly calculated offender score did not affect the standard range. State v.
Kilgore, 141 Wn. App. 817, 824-25, 172 P.3d 373 (2007) (where appellate court
reversed two of seven convictions, trial court did not err by not resentencing on
the affirmed convictions). Courts also need not remand for resentencing of an
exceptional sentence “where the reviewing court overturns one or more
aggravating factors but is satisfied that the trial court would have imposed the
same sentence based upon a factor or factors that are upheld.” State v. Saltz,
137 Wn. App. 576, 585, 154 P.3d 282 (2007) (quoting State v. Hughes, 154
4 No. 78242-8-115
Wn.2d 118, 134, 110 P.3d 192 (2005), abrogated on other grounds by
Washington v. Recuenco, 548 U.S. 12, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006)) (though trial court improperly considered the “too lenient” factor, the
appellate court did not remand for resentencing because the record indicated
that the trial court found the rapid recidivism factor to be substantial and
compelling when imposing the exceptional sentence); see ~J~2 State v.
Wakefield, 130 Wn.2d 464, 478, 925 P.2d 183 (1996) (declining to remand for
resentencing because “even if the trial court initially considered the possibility for
early release when imposing the exceptional sentence, it would in all probability
impose the same sentence on remand given the circumstances of this case”).
Here, while the trial court noted in both the Judgment and Sentence and
FFCL that the jury convicted Le of first degree felony murder and second degree
intentional murder, the record clearly indicates that the court would have imposed
the same sentence had it not included Le’s intentional murder conviction in the
Judgment and Sentence. In the FFCL, the court never discussed the intentional
murder conviction as a justification for the exceptional sentence.3 Instead, the
FFCL provides that the aggravating factors of particular vulnerability of the victim
and deliberate cruelty supported the exceptional sentence. See j~ I, 1996 WL
312492, at *2 (‘The trial court’s reasons for the imposition of the exceptional
~ Le claims that “the court focused on the intentional nature of the murder in discussing the deliberate cruelty aggravator.” He claims this shows that the court’s emphasis was on the intentional murder conviction. But the facts the court addressed in imposing the exceptional sentence are the facts of the murder. And Le cites no authority to support the proposition that, in sentencing for felony murder, the trial court was prohibited from considering these circumstances beyond the elements of the particular crime.
5 No. 78242-8-1/6
sentence were (1) the particular vulnerability of the victim and (2) deliberate
cruelty to the victim.”). The majority of the factual findings focus on the facts that
demonstrated the particular vulnerability of Lui, and the deliberate cruelty of Le’s
crime. These factors alone may justify an exceptional sentence. Because
vacating Le’s alternative conviction does not change these underlying facts, the
court would have considered them as aggravating factors when imposing an
exceptional sentence even if Le’s intentional murder conviction had not been in
his Judgment and Sentence.4
For these reasons, we decline to remand for resentencing.
Granted in part, denied in part.
:4 WE CONCUR:
4 lIP - // _ ______
~ Moreover, removing the improper intentional murder conviction does not affect the standard range that Le faced at sentencing. Additionally, in Le’s Judgment and Sentence, the trial court sentenced Le to 840 months for felony murder but imposed a standard range sentence for the intentional murder conviction.