State Of Washington, V. Allen James Williams

• Court: Court of Appeals of Washington
• Decided: June 13, 2022
• Docket: 82803-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 82803-7-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ALLEN JAMES WILLIAMS,

Appellant.

BIRK, J. — Allen Williams challenges the trial court’s order amending his

judgment and sentence following remand to correct a sentencing error. In

Williams’s first appeal, this court affirmed his convictions but held that the

combined term of confinement and community custody exceeded the statutory

maximum as to five of his six convictions. Williams argues that remand is again

required because his amended sentence continues to exceed the statutory

maximum and because the trial court allowed him to appear at the remand hearing

via videoconferencing from prison and did not affirmatively give him an invitation

to speak. Williams also raises issues in his statement of additional grounds.

Finding no error, we affirm.

FACTS

In January 2019, following a bench trial, the court convicted Williams of six

counts of felony domestic violence violation of a no-contact order (VNCO), one

count of driving under the influence (DUI), and one count of escape in the third No. 82803-7-I/2

degree. Based on an offender score of 19, the court imposed an above-range

exceptional sentence consisting of 60-month concurrent standard range

sentences on five of the VNCO convictions (as charged in counts 1, 5, 6, 7, and 8)

and a consecutive 30-month sentence on the remaining VNCO conviction (as

charged in count 4) for a total of 90 months of confinement. The court also

imposed 12 months of community custody for each VNCO count.

On appeal, Williams argued insufficient evidence supported all but one of

the VNCO convictions, the court imposed a clearly excessive exceptional

sentence, and the terms of community custody caused his sentence to exceed the

statutory maximum on all but one of the VNCO convictions. State v. Williams, No.

79652-6-I, slip op. at 1 (Wash. Ct. App. June 8, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/796526.pdf. This court affirmed Williams’s

convictions and concluded that his sentence was not clearly excessive. Id. at 9.

But it agreed Williams’s concurrent 60-month sentences on the VNCO convictions

as charged in counts 1, 5, 6, 7, and 8, when combined with their 12-month terms

of community custody, exceeded the 60-month statutory maximum. Id. When a

standard range term of confinement is combined with community custody, this

combined term “shall be reduced by the court” if it exceeds the statutory maximum

for the crime. Former RCW 9.94A.701(9) (2010). Accordingly, this court

remanded to the trial court “to either amend the community custody terms or

resentence on the applicable counts.” Id. at 10.

2 No. 82803-7-I/3

A hearing on remand took place on May 26, 2021. Williams appeared via

videoconferencing from prison. The State asked the court to amend the judgment

and sentence by striking the 12-month community custody term from the five

VNCO counts on which the court had imposed 60 months of confinement. The

State argued the 12-month community custody term should remain on count 4, the

VNCO count on which the court had imposed only 30 months of confinement.

Because the sentence on count 4 was consecutive to those on the other VNCO

counts, the resulting amended sentence would still consist of 90 months of

confinement followed by 12 months of community custody. Defense counsel

concurred. The court entered the order.

Williams appeals.

DISCUSSION

I. Sentence

Williams argues that his amended sentence continues to exceed the

statutory maximum. He contends that remand is again required to strike the 12-

month term of community custody from count 4. The State argues that Williams is

barred from challenging his original sentence on a second direct appeal following

this court’s limited remand to correct a sentencing error, and also that the amended

sentence does not exceed the statutory maximum. We agree with the State.

A defendant is generally barred from raising issues in a second appeal that

were or could have been raised in the first appeal. State v. Sauve, 100 Wn.2d 84,

3 No. 82803-7-I/4

87, 666 P.2d 894 (1983). RAP 2.5 allows a party to raise an issue not raised in an

earlier appeal where “the trial court, on remand, exercised its independent

judgment, reviewed and ruled again on such issue.” State v. Barberio, 121 Wn.2d

48, 50, 846 P.2d 519 (1993). But a trial court’s discretion to resentence on remand

is limited by the scope of the appellate court’s mandate. State v. Kilgore, 167

Wn.2d 28, 42, 216 P.3d 393 (2009). Where the appellate court vacates the original

sentence or broadly remands for a new sentencing hearing, the defendant may

raise sentencing issues not brought in the first appeal. State v. Toney, 149 Wn.

App. 787, 792, 205 P.3d 944 (2009).

In contrast, the trial court does not retain the same discretion “when the

appellate court remands for the trial court to enter only a ministerial correction of

the original sentence.” Id. Trial courts must strictly comply with directives from

appellate courts that leave the trial court no discretion. State v. Schwab, 134 Wn.

App. 635, 645, 141 P.3d 658 (2006). Where a trial court exercises no independent

judgment on remand, there is no issue to review on appeal. Kilgore, 167 Wn.2d

at 40. In such a case, “it is the original judgment and sentence entered by the

original trial court that controls the defendant’s conviction and term of

incarceration.” Id. at 40-41.

Here, our opinion specifically and narrowly instructed the trial court on

remand “to either amend the community custody terms or resentence on the

applicable counts.” Williams, No. 79652-6-I, slip op. at 10. The record

4 No. 82803-7-I/5

demonstrates the court and the parties understood the purpose of the hearing was

limited to amending the community custody terms on the five challenged counts.

At the beginning of the hearing, the State noted, “[T]his matter comes on to

basically amend a sentence that was imposed beyond the statutory maximum.”

Defense counsel “concur[red] entirely” with this approach:

I think that the intent of the Court is clear in the Judgment and Sentence by simply striking the requirements of community custody from the counts that are at 60 months. There’s no need for the Court to make any additional findings. And as I explained to Mr. Williams, sort of the sentences remained unchanged. He’s going to . . .

....

. . . serve 90 months as determined by [the] Department of Corrections and then 12 months of community custody as by statute. I think that squares all the circles that are required.

The court responded, “All right. On counts one, five, six, seven, and eight, I will

maintain the sentence of 60 months in custody and amend the community custody

to zero months.” The court also indicated that if Williams did not authorize defense

counsel to sign the document on his behalf, “I am going to sign it anyway because

it doesn’t modify any of the conditions really in relation to the sentence.” At the

conclusion of the hearing, the court did not enter a new judgment and sentence.

Instead, it entered an “Order Amending Judgment and Sentence” striking

community custody as to counts 1, 5, 6, 7, and 8 “since sentence was for [the] 60

month statutory maximum.” The order expressly stated that “ALL other provisions

of the Judgment and Sentence remain in force and effect.”

5 No. 82803-7-I/6

Williams asserts review is appropriate because the trial court conducted a

full resentencing hearing. He contends the court had to exercise discretion on

remand to determine how to proceed. But the decision to correct a judgment and

sentence is not an appealable act of independent judgment by the trial court.

“[W]hen, on remand, a trial court has the choice to review and resentence a

defendant under a new judgment and sentence or to simply correct and amend the

original judgment and sentence, that choice itself is not an exercise of independent

judgment by the trial court.” Kilgore, 167 Wn.2d at 40. In such a case, “it is the

original judgment and sentence entered by the original trial court that controls the

defendant’s conviction and term of incarceration.” Id. at 40-41. It is clear that the

court on remand did not exercise independent judgment regarding Williams’s

sentence. Williams did not challenge the community custody term on count 4 in

his first appeal. That sentence is now final. Because the trial court exercised no

discretion on this issue, Williams cannot challenge it in this appeal.

Appellate courts have authority “to address arguments belatedly raised

when necessary to produce a just resolution.” See State v. McFarland, 189 Wn.2d

47, 57, 399 P.3d 1106 (2017) (citing RAP 2.5(a)). We need not consider invoking

this authority here, as Williams’s sentence does not exceed the statutory maximum

for his crimes. “[W]hen imposing an exceptional sentence the court has discretion

to sentence defendants to the statutory maximum of each individual crime and run

multiple convictions consecutively.” State v. Weller, 197 Wn. App. 731, 735, 391

6 No. 82803-7-I/7

P.3d 527 (2017). “In such a situation, the total maximum allowable sentence

exceeds the statutory maximum for each individual conviction.” Id. Here,

Williams’s sentence on count 4 (30 months of confinement plus 12 months of

community custody) and his amended sentence on the remaining VNCO counts

(60 months of confinement) are each individually less than the statutory maximum.

Because the sentence on count 4 runs consecutively to those on the remaining

counts, the total sentence does not exceed the allowable statutory maximum.

Williams relies on this court’s unpublished opinion in State v. Nord, but that

case does not support a different conclusion. No. 77435-2-I, slip op. (Wash. Ct.

App. January 22, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/

774352.PDF. In Nord, the sentencing court imposed 10 years of confinement for

unlawful delivery and 2 years for unlawful possession to run concurrently, plus a

12-month term of community custody. Id. at 3. Because the 10-year total term of

confinement combined with the 12-month community custody term exceeded the

5-year maximum sentence for unlawful possession, this court held that remand

was required to correct the unlawful sentence. Id. at 9. But here, unlike Nord, the

court imposed a consecutive sentence. Williams’s amended sentence is lawful.

II. Right to Allocute and Be Present

Williams argues the trial court erred by allowing him to appear at the hearing

via videoconferencing from prison and by allowing him to appear without giving

him an opportunity to be heard. These claims present questions of law that this

7 No. 82803-7-I/8

court reviews de novo. In re Pers. Restraint of Brooks, 166 Wn.2d 664, 667, 211

P.3d 1023 (2009).

Williams first argues remand is required because the trial court failed to

provide him with an opportunity to be heard at his resentencing hearing. A person

convicted of a crime has “the right to allocute” before the court imposes a sentence.

State v. Canfield, 154 Wn.2d 698, 703, 116 P.3d 391 (2005). Allocution is “a

significant aspect of the sentencing process” that a sentencing court “should

scrupulously follow.” In re Pers. Restraint of Echevarria, 141 Wn.2d 323, 336-37,

6 P.3d 573 (2000). RCW 9.94A.500(1) expressly allows argument from the

defendant at a sentencing hearing. However, as previously discussed, the hearing

at issue in this case was not a sentencing hearing. Rather, the purpose of the

hearing was to enter an order amending Williams’s judgment and sentence

pursuant to this court’s mandate. His sentence did not change and he was not at

risk of losing any additional liberty. Moreover, nothing in the record indicates that

Williams asked to speak. Williams cites no authority supporting a right to allocution

under these circumstances.

Williams next argues the trial court violated his right to appear in person at

the hearing. “As a matter of due process, ‘[a] criminal defendant has a fundamental

right to be present at all critical stages of a trial.’” State v. Jones, 185 Wn.2d 412,

426, 372 P.3d 755 (2016) (alteration in original) (quoting State v. Irby, 170 Wn.2d

874, 880, 246 P.3d 796 (2011)). Thus, “[a] defendant has a constitutional right to

8 No. 82803-7-I/9

be present at sentencing, including resentencing.” State v. Ramos, 171 Wn.2d 46,

48, 246 P.3d 811 (2011). But a defendant has no constitutional right to be present

“when a hearing on remand involves only a ministerial correction and no exercise

of discretion.” Id. Williams likens his case to that of the defendant in Ramos.

There, our Supreme Court held that the defendant had the right to be present at

his resentencing hearing because “the trial court’s duty on remand is not merely

ministerial” and the court must exercise its discretion. Id. at 49. But here, unlike

in Ramos, the hearing was strictly ministerial and the trial court did not exercise

discretion.

Williams also contends that the court failed to follow CrR 3.4(e)(2), which

authorizes videoconference hearings only for proceedings listed by court rule or

“by agreement of the parties, either in writing or on the record.” Williams asserts

that the parties did not formally agree to proceed without his presence in court.

The State argues this claim is not reviewable because the writings scheduling the

hearing and discussing how Williams would appear are not part of the record.

As a general rule, this court will not consider a claim of error raised for the

first time on appeal unless the defendant shows it is a “manifest error affecting a

constitutional right.” RAP 2.5(a)(3); State v. O’Hara, 167 Wn.2d 91, 97-98, 217

P.3d 756 (2009). “‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual

prejudice.” State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). We agree

9 No. 82803-7-I/10

with the State the alleged error is not manifest in the record before this court and

Williams has not demonstrated prejudice.

Williams further argues State v. Jackson, 195 Wn.2d 841, 467 P.3d 97

(2020) prohibits any videoconferencing from prison. The Jackson court held that

shackling the defendant in his pretrial hearings without an individualized

determination that shackles were necessary violated his constitutional rights and

that the error was not harmless. Id. at 845. The court’s analysis focused on the

history of shackles and restraints as a means of control and oppression in

American history. Id. at 850-51. Nothing in the record indicates that Williams was

shackled while appearing on video. We decline to read Jackson for the broad

proposition that any videoconference appearance from prison violates the

defendant’s constitutional rights.

III. Statement of Additional Grounds

Williams filed a pro se statement of additional grounds for review (SAG).

See RAP 10.10. He appears to argue his constitutional rights were violated

because (1) the State withheld exculpatory portions of the video and audio

recordings of his traffic stop and (2) the trial court admitted into evidence

completed calls Williams made from jail to the person protected by the no-contact

order, even though she did not testify at trial.

Although the precise nature of Williams’s claims is unclear, both appear to

be directed to alleged evidentiary errors that occurred during trial. Williams raised

10 No. 82803-7-I/11

similar claims in his SAG in the first appeal, which this court rejected. Williams’s

current arguments amount to a new challenge to the merits of his convictions and

are beyond the scope of this court’s narrow remand to correct a sentencing error.

Accordingly, we do not reach them. See Barberio, 121 Wn.2d at 50 (appellate

court will consider a new issue on the second appeal only if the trial court, on

remand, exercised independent judgment and reviewed and ruled again on the

issue); State v. Mandanas, 163 Wn. App. 712, 716, 262 P.3d 522 (2011)

(defendant generally barred from raising issues that were or could have been

brought in first appeal).

Affirmed.

WE CONCUR: