FILED FEBRUARY 11, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39298-8-III Respondent, ) (Consol. with 39355-1-III) ) v. ) ) ALFRED GALINDO, JR, ) UNPUBLISHED OPINION ) Appellant. )
STAAB, A.C.J. — Following the Supreme Court’s decision in State v. Blake,1
Alfred Galindo, Jr. was resentenced on three counts of felony assault. In these
consolidated appeals, he takes two routes to challenge the use of a prior conviction for
escape from community custody in calculating his offender score on the assault
convictions. First, on appeal from the denial of his CrR 7.8 motion, Galindo argues that
his escape conviction is invalid and should be vacated because at the time he escaped he
was on community custody for a conviction for possession of a controlled substance.
Alternatively, on appeal from resentencing on the three assault charges, Galindo
contends that even if the escape conviction is not invalid the resentencing court
committed error by adding the conviction to his offender score on the assault charges. He No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
also argues that the resentencing court failed to consider the original sentencing court’s
evaluation of the crimes, the multiple offense policy, and his rehabilitative efforts, all of
which support his request for an exceptional concurrent sentence.
We deny both appeals. Galindo fails to show that his prior conviction for escape
from community custody was facially invalid. As such, he fails to demonstrate that his
CrR 7.8 motion is timely and inclusion of this offense in calculating his offender score
was error. Moreover, the resentencing court properly conducted a de novo resentencing,
considered the prior sentencing determinations, and then independently exercised its
discretion and declined to impose an exceptional sentence. We affirm Galindo’s escape
conviction under No. 39355-1-III. We also affirm Galindo’s sentence on the assault
charges under No. 39298-8-III, but remand with instructions to strike the challenged legal
financial obligations (LFOs) from his judgment and sentence on that case.
BACKGROUND
Galindo I
In January 2008, Alfred Galindo pleaded guilty to escape from community
custody. Galindo was on community custody at the time for possession of a controlled
substance.
1 197 Wn.2d 170, 481 P.3d 521 (2021).
2 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
In September 2009, Galindo was found guilty of three counts of assault in the first
degree. The sentencing court, at that time , imposed an exceptional sentence downward,
based on an offender score of “5.” In support of the exceptional sentence, the trial court
found that the effect of consecutive sentences served very little purpose as far as
community safety, and that Galindo suffered with chemical dependency. The State cross-
appealed both the legal and factual basis for the exceptional sentence, as well as the
failure of the trial court to enter written findings.
On appeal, this court reversed after concluding that “there was no factual basis for
finding Mr. Galindo had a chemical dependency problem” and that “chemical
dependency is not a basis for an exceptional sentence.” State v. Galindo, noted at 160
Wn. App. 1033, 2011 WL 2150655, at *9-10. This court concluded that to the extent that
the trial court disagreed with the standard range consecutive sentence, judicial
disagreement with a presumptive sentence was not a valid basis for an exceptional
sentence. Finally, this court rejected Galindo’s argument that the sentencing court’s
reasoning reflected the “multiple offense policy,” noting that this policy does not apply
when sentencing for multiple serious violent offenses. Id. at *11. Because the lack of
written findings precluded this court from determining whether the exceptional sentence
was justified, this court reversed and remanded for resentencing.
3 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
RESENTENCING (GALINDO II)
At Galindo’s resentencing in December 2011, the trial court denied his request for
an exceptional sentence, instead imposing standard range consecutive sentences on the
three serious violent first degree assault offenses. Additionally, it imposed $10,564.18 in
restitution.
In January 2012, Galindo again appealed, arguing that the sentencing court erred
by not imposing an exceptional sentence. Finding no error, this court affirmed. A
mandate on this decision was issued May 7, 2013.
Current Appeal
In October 2022, Galindo filed a CrR 7.8 motion to vacate his 2008 escape
conviction where his community custody was based on a conviction of possession of a
controlled substance, as well as a motion for resentencing in the 2009 assault case.
Galindo argued in his CrR 7.8 motion that because the predicate felony underlying
the escape from community custody charge was invalid based on the Supreme Court’s
decision in Blake, the sentence itself was invalid and so was any conviction for escaping
from an invalid sentence. The superior court rejected this argument and denied the
motion to vacate the escape conviction.
Galindo argued, in his motion for resentencing that even if his escape conviction
was not invalid, it should not be included in his offender score. Additionally, he asked
for an exceptional sentence downward. As grounds for an exceptional sentence, Galindo
4 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
argued that the court should apply the “multiple offense policy” and consider his
rehabilitative efforts while he was incarcerated. In support of this request, he provided
the two prior judgment and sentences and evidence to show his rehabilitative work while
incarcerated, including certificates of achievement and letters of recommendation.
The State conceded that Galindo’s offender score should be reduced by one point
because the possession of a controlled substance charge was vacated. Additionally, the
State agreed that the court had discretion to impose an exceptional concurrent sentence
even on multiple serious violent offenses. Despite this discretion, the State asked the
court to impose a standard range sentence, which included consecutive sentences on the
three assault convictions.
Before imposing the sentence, the trial court noted that it had reviewed the
procedural history of Galindo’s case, the evidence of rehabilitation efforts, and Galindo’s
letters of recommendation. The court also recognized that it had the authority to impose
an exceptional sentence by running the sentences concurrent. Ultimately, the court
denied Galindo’s request for an exceptional sentence downward, explaining:
It is very difficult to ignore what you have done. I do not, in any way, shape or form make light of the strides that Mr. Galindo has made and any other defendant who has made similar progress. To just outright ignore those changes and pretend like they don’t exist, doesn’t sit well with me as a judicial officer.
...
5 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
I do believe that Mr. Galindo is on a very different path than he was at the time of the commission of what Judge Tompkins described [in Galindo II]. To be a really rather horrific act. The victims in this case were in such fear for no fault of their own. They did nothing to be put in the place that Mr. Galindo put them by his acts. I believe that Mr. Galindo, based upon what has been represented to this Court, understands that quite thoroughly.
....
It is within this Court’s discretion to run these sentences concurrently. It is the directive of the statute to run these sentences consecutively. I have tried to be as consistent as I can in these resentencings, and I know in certain circumstances, I am not as consistent as I probably should be or could be or I suppose as clear as I can be to the participants here. What I want Mr. Galindo to understand is that I have considered all of this information. While it may seem very clear to him that Judge Leveque [in Galindo I] originally wanted to—or attempted to run these sentences concurrently, he thought he could not. The file also reflects that Judge Tompkins [in Galindo II] had a vastly different position on the interpretation of the facts. My view of the facts are similar to hers. The sentence should follow the statutory scheme.
Rep. of Proc. (RP) at 26-27.
Using an offender score of “4,” the court imposed a sentence of 129 months on
count 1, and using an offender score of “0” on the remaining two counts, imposed a
consecutive sentence of 93 months each. In addition, noting it was previously imposed,
the court added the $500 victim penalty assessment (VPA). It struck the $100 DNA fee,
because it was waived on resentencing, and noted $10,564 in restitution that was
previously entered.
Galindo appeals.
6 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
ANALYSIS
1. VALIDITY AND USE OF ESCAPE CONVICTION
Galindo assigns error to the superior court’s denial of his CrR 7.8 motion to vacate
his 2008 conviction for escape from community custody. In Galindo’s second appeal, he
contends that the trial court erred in adding one point to his offender score for the assault
convictions based on the prior escape conviction. Both issues are based on the logic that
since Galindo’s prior conviction for possession of a controlled substance is invalid, his
sentence on this charge was also invalid, therefore his conviction for escape from
community custody was invalid. Both arguments fail because Galindo does not
demonstrate that his conviction for escape is facially invalid.
We review the superior court’s order denying Galindo’s CrR 7.8 motion for abuse
of discretion. See State v. Gomez-Florencio, 88 Wn. App. 254, 258, 945 P.2d 228
(1997). “Discretion is abused if the trial court’s decision is manifestly unreasonable or is
based on untenable grounds.” State v. Martinez, 121 Wn. App. 21, 30, 86 P.3d 1210
(2004). This court reviews a trial court’s offender score calculation de novo. State v.
Schwartz, 194 Wn.2d 432, 438, 450 P.3d 141 (2019).
Both issues raised by Galindo require him to show that the escape conviction is
facially invalid. Galindo’s first argument is a challenge to the validity of the escape
conviction by way of a CrR 7.8 motion he filed more than a year after the escape
conviction became final. Thus, the motion is untimely unless he can show that the escape
7 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
judgment is facially invalid or meets one of the exceptions provided in RCW 10.73.100.
“Similar to other collateral challenges, a motion under CrR 7.8(b) may not be filed more
than one year after the judgment becomes final ‘if the judgment and sentence is valid on
its face and was rendered by a court of competent jurisdiction.’” State v. Fletcher, 19
Wn. App. 2d 566, 573, 497 P.3d 886 (2021) (quoting RCW 10.73.090(1)).
A judgment is facially invalid if it exceeds the trial court’s authority. In re Pers.
Restraint of Flippo, 187 Wn.2d 106, 110, 385 P.3d 128 (2016). Examples of facially
invalid judgments include a sentence that exceeds the statutory maximum, a
miscalculated offender score that improperly increases the standard range, and a
conviction for a nonexistent crime. See In re Pers. Restraint of Fletcher, 3 Wn.3d 356,
552 P.3d 302 (2024); In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801
(2004). The alleged defect must be evident from the face of the judgment, which may
include the charging document and verdict forms. In re Pers. Restraint of Scott, 173
Wn.2d 911, 917, 271 P.3d 218 (2012).
Galindo alleges that his conviction for escape from community custody is invalid.
However, he points to a defect that is not evident from the face of the judgment for the
escape conviction. Instead, Galindo relies on documents from another case to support his
argument. Because he fails to show that his escape conviction is facially invalid, Galindo
fails to demonstrate that his CrR 7.8 motion was timely. Thus, the trial court did not
abuse its discretion in denying Galindo’s CrR 7.8 motion to vacate the escape conviction.
8 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
Even if we were to consider the substance of Galindo’s argument, it would fail.
Galindo next argues that the use of his escape conviction in calculating his offender score
on the assault convictions was error. While the State is not required to prove “the
constitutional validity of a prior conviction” before using it in calculating an offender
score, “a sentencing court may not consider . . . a prior conviction [that is]
constitutionally invalid on its face.” State v. Paniagua, 22 Wn. App. 2d 350, 355, 511
P.3d 113 (2022).
“When a defendant is convicted of a nonexistent crime, the judgment and sentence
is invalid on its face.” Id. at 355-56. Here, the State did not convict Galindo of a
nonexistent crime. Escape from community custody is still in existence today and
Galindo does not argue otherwise.
As we noted in our unpublished decision in Wynne, the validity of a conviction for
escape from community custody does not turn on the constitutionality of the crime giving
rise to the community custody sentence. State v. Wynne, No. 39351-8-III, slip op. at *1
(Wash. Ct. App. July 23, 2024) (unpublished),
https://www.courts.wa.gov/opinions/pdf/393518_unp.pdf (citing State v. Gonzales, 103
Wn.2d 564, 567, 693 P.2d 119 (1985)). Even though Galindo’s conviction for possession
of a controlled substance was later vacated, he was required to continue serving his
sentence on that charge until it was “discharged by due process of law.” Paniagua, 22
Wn. App. 2d at 358.
9 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
Galindo relies on State v. Rahnert, 24 Wn. App. 2d 34, 516 P.3d 1054 (2022) and
State v. French, 21 Wn. App. 2d 891, 500 P.3d 1036 (2022), which are factually and
legally distinguishable. In both cases, the trial courts held that it was improper to add a
point for committing an offense while on community custody when the community
custody was based on an underlying unconstitutional conviction. Rahnert, 24 Wn. App.
2d at 35; French, 21 Wn. App. 2d at 894. Both courts recognized that community
custody is a penalty and when that penalty is imposed as a result of a void statute, the
penalty is void as well. Rahnert, 24 Wn. App.2d at 37. Since the underlying sentence,
which included community custody, was void, “adding a point for being on community
custody for an invalid sentence would . . . ‘renew[ ]’ the constitutional violation.” Id.
(alterations in original) (quoting French, 21 Wn. App. 2d at 897).
Both Rahnert and French address the use of an invalid penalty or sentence for
purposes of current sentencing. Here, the trial court did not use an invalid penalty to
increase Galindo’s offender score. Galindo’s conviction for escape from community
custody is a wholly separate issue, even when that community custody is an invalid
sentence. The penalty is invalid; the conviction is not.
We affirm the trial court’s inclusion of Galindo’s prior conviction for escape from
community custody in his offender score and deny Galindo’s related appeal challenging
the validity of the escape conviction.
10 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
2. ADDITIONAL SENTENCING CHALLENGES
Galindo contends this court should remand for the trial court to apply the
sentencing court’s evaluation from 2009 and its application of the multiple offense policy
for a downward exceptional sentence. Additionally, he argues the resentencing court
erred by failing to consider Galindo’s rehabilitation. We reject both arguments.
Following Blake, the superior court properly conducted a de novo resentencing. The
court exercised its discretion and chose not to impose an exceptional sentence downward
even after considering Galindo’s rehabilitation efforts.
When a defendant is resentenced pursuant to Blake, it shall be done de novo. State
v. Edwards, 23 Wn. App. 2d 118, 122, 514 P.3d 692 (2022). The resentencing court will
not be bound by collateral estoppel when the original sentence is no longer a final
judgment on the merits. State v. Brown, 193 Wn.2d 280, 286-87, 440 P.3d 962 (2019).
Thus, at resentencing, the parties may “advance any and all factual and legal arguments
regarding . . . [an] offender score and [re]sentencing range.” Edwards, 23 Wn. App. 2d at
122. Additionally, although the resentencing judge may consider a prior ruling during
the sentencing of the defendant, the judge should still exercise independent discretion.
Otherwise, the offender is deprived of de novo review. State v. Dunbar, 27 Wn. App. 2d
238, 244, 532 P.3d 652 (2023).
RCW 9.94A.589(1) and (2) set the standards on when concurrent and consecutive
sentences should be imposed. A sentence that departs from these standards is considered
11 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
an exceptional sentence subject to RCW 9.94A.535. Under RCW 9.94A.535, a court
“may impose a sentence outside the standard sentence range . . . if it finds . . . there are
substantial and compelling reasons justifying an exceptional sentence.” Relevant here, a
court may impose an exceptional sentence where it finds “the operation of the multiple
offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly
excessive.” RCW 9.94A.535(1)(g).
Generally, a standard range sentence is not appealable and a defendant is not
entitled to an exceptional sentence below the standard range. See RCW 9.94A.585(1).
However, the general rule does not prevent a defendant from raising constitutional
challenges or procedural errors. State v. Garcia-Martinez, 88 Wn. App. 322, 329-30, 944
P.2d 1104 (1997).
Here, the court conducted a de novo resentencing. It exercised independent
discretion and declined to impose an exceptional sentence downward. In doing so, the
court recognized its authority to run these sentences concurrently although the statute
directs running them consecutively. It acknowledged the conflict between the court in
Galindo I and Galindo II, pointing out that one court ran the sentences concurrently,
while the other ran them consecutively. However, after considering all the information
and reviewing the facts, the resentencing court ordered a standard range sentence that
required consecutive sentences.
12 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
Galindo contends that our decision in Galindo I, that the multiple offense policy
was not available for serious violent offenses, was wrong and later overturned in State v.
McFarland, 189 Wn.2d 47, 53, 399 P.3d 1106 (2017). He goes on to contend that our
incorrect decision in Galindo I resulted in him being resentenced and ultimately losing
the benefit of the exceptional concurrent sentence imposed by the first judge. In this third
appeal he suggests that we should remedy our incorrect decision in Galindo I by
remanding with instructions to re-impose the exceptional sentence imposed by the first
judge. He cites no authority to support his challenge to the standard range sentence
imposed at his last resentencing or for his suggestion that he is entitled to an exceptional
sentence.
Galindo next contends the resentencing court relied on the previous court’s
decision in Galindo II, to find that a standard range sentence was not excessive,
indicating it needed to “follow” the “statutory scheme” rather than exercise its discretion.
Br. of Appellant at 22. This argument mischaracterizes the record. The court also stated
“[i]t is within this Court’s discretion to run these sentences concurrently.” RP at 27.
Thus, while the resentencing court acknowledged the decision in Galindo I and Galindo
II, it still recognized its independent discretion to impose a concurrent exceptional
sentence but declined to do so.
13 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
Finally, Galindo argues the resentencing court erred when it failed to consider his
rehabilitation over the past 12 years, arguing State v. Dunbar, 27 Wn. App. 2d 238, 532
P.3d 652 (2023) controls. We disagree.
In Dunbar, this court held that rehabilitative efforts can be considered for purposes
of setting a sentence within the standard range. Id. at 248. We also recognized that RCW
9.94A.340, as interpreted by our Supreme Court in State v. Law, 154 Wn.2d 85, 92-104,
110 P.3d 717 (2005), prohibits the consideration of personal factors to depart from a
standard range sentence. Ultimately, we remanded for resentencing because the
resentencing court adopted the previous sentence without exercising the independent
discretion required by de novo resentencing. Dunbar, 27 Wn. App. 2d at 243.
Here, Galindo asked for a low-end sentence of 129 months on count 1, and 93
months on counts 2 and 3. He also asked for an exceptional sentence by running these
sentences concurrent. The court imposed the low-end sentences Galindo requested, but
did not run them concurrently. In doing so, the court noted that it had reviewed all the
materials submitted by the parties and acknowledged the rehabilitative efforts made by
Galindo. Galindo fails to show any abuse of discretion.
3. VICTIM PENALTY ASSESSMENT
Galindo contends that the VPA, community custody supervision fees, and interest
accrual should be struck based on statutory amendments. The State argues that lack of
finality is a requirement for the prospective application of LFO statutory amendments.
14 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
Thus, the State contends the Blake resentencing hearing was required to correct only a
facial invalidity in the defendant’s judgment—the inclusion of a void possession of a
controlled substance charge, and the necessary reduction to the defendant’s offender
score and associated standard range. We disagree with the State, finding that a Blake
resentencing is a full resentencing hearing.
Former RCW 7.68.035(1)(a) (2018) required the VPA to be imposed on any
individual found guilty of a crime in superior court. Effective July 1, 2023, RCW
7.68.035(4) provides that the VPA shall not be imposed against an adult who is indigent
at the time of sentencing. See LAWS OF 2023, ch. 449, § 1. This amendment applies
prospectively to cases pending on direct appeal that are not final. State v. Ellis, 27 Wn.
App. 2d 1, 16, 530 P.3d 1048 (2023).
Here, Galindo was found indigent and his Blake resentencing took place in
October 2022 prior to the effective date of the amendment. The issue then turns on
whether the Blake resentencing reopens finality as to the VPA issue. While the Supreme
Court has not addressed this specific issue, in Dunbar, this court provided a thorough
discussion of resentencing parameters in Washington as well as other jurisdictions.
“When a reviewing court reverses or vacates a sentence, resentencing is de novo in
nature.” Dunbar, 27 Wn. App. 2d at 245. Accordingly, “[r]esentencing must proceed as
an entirely new proceeding when all issues bearing on the proper sentence must be
considered de novo and the defendant is entitled to the full array of due process rights.”
15 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
Id. Resentencing “should be free to consider any [and all] matters relevant to sentencing,
even those that may not have been raised at the first sentencing hearing, as if it were
sentencing de novo.” Id. at 248. Because Galindo’s resentencing was a full resentencing,
and his case was not final when the statute was amended, all matters, including the VPA,
were before the resentencing court, and are before this court now.2
Community Supervision Fees
“Until recently, former RCW 9.94A.703(2)(d) (2018) provided, ‘Unless waived by
the court, as part of any term of community custody, the court shall order an offender to .
. . [p]ay supervision fees as determined by [The Department of Corrections].’” State v.
Wemhoff, 24 Wn. App. 2d 198, 200, 519 P.3d 297 (2022) (alterations in original)
(quoting SECOND SUBSTITUTE H.B. 1818, 67th Leg., Reg. Sess. (Wash. 2022)). In 2022,
the statue was amended, deleting this subsection from the statute. Id. at 200. This
amendment was effective at the time of Galindo’s resentencing in October 2022.
Although Galindo did not preserve an objection in the trial court to the community
supervision fees, this should not bar his relief. See State v. Blazina, 182 Wn.2d 827, 832-
34, 344 P.3d 680 (2015) (exercising discretion to review an LFO raised for the first time
2 Although unpublished, this court also addressed this issue in State v. Jones, No. 39422-1-III (Wash. Ct. App. June 6, 2024), finding that the defendant enjoyed the benefit of the amended statute because his appeal was not yet final for the purposes of sentencing.
16 No. 39298-8-III (consol. with 39355-1-III) State v. Galindo
on appeal). We exercise our discretion to review this issue and grant Galindo’s requested
relief, remanding with instructions to strike the community custody supervision fees.
Interest Accrual
Finally, RCW 10.82.090 provides that “[a]s of June 7, 2018, no interest shall
accrue on nonrestitution legal financial obligations.” Similar to the community
supervision fees, this amendment was effective at the time of Galindo’s resentencing.
Although Galindo did not object at sentencing, we grant his request for relief and remand
with instructions to strike the interest accrual.
We deny Galindo’s appeal in No. 39355-1-III and find that his conviction for
escape from community custody is valid. Additionally, we affirm his sentence in No.
39298-8-III, but remand with instructions to strike the VPA, community custody fees,
and any interest on nonrestitution legal financial obligations.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Staab, A.C.J. WE CONCUR:
_________________________________ _________________________________ Fearing, J. Cooney, J.