FILED JULY 18, 2023 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. 39125-6-III Respondent, ) ) v. ) PUBLISHED OPINION ) DANIEL HERBERT DUNBAR, ) ) Appellant. )
FEARING, C.J. — Daniel Dunbar appeals from his resentencing conducted
pursuant to State v. Blake. He contends the resentencing court mistakenly failed to
consider his rehabilitation and erroneously bound itself to the initial sentencing judge’s
ruling. This reviewing court has been unfair to superior courts by failing to specify a
court’s obligations at resentencing and failing to publish a decision that announces and
adopts those duties. We now do so. We remand for another resentencing hearing, during
which the superior court should conduct de novo resentencing and during which either
party may submit new evidence and arguments, including rehabilitation or the lack
thereof. No. 39125-6-III State v. Dunbar
FACTS
This court recounted the facts underlying Daniel Dunbar’s 2017 convictions in his
initial appeal of those convictions. State v. Dunbar, No. 35349-4-III (Wash. Ct. App.
May 2, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/353464.pdf. The
underlying facts lack relevance to Dunbar’s arguments in the instant appeal.
In 2017, a jury convicted Daniel Dunbar on two charges: (1) possession of a stolen
motor vehicle and (2) tampering with a witness. Dunbar’s criminal history encapsulated
forty-one prior offenses, including two earlier convictions for possession of a controlled
substance. The 2017 sentencing court calculated Dunbar’s offender scores as twenty-six
for the stolen motor vehicle conviction and twelve for the witness tampering conviction.
The court imposed sixty months of confinement for the two charges. The court ordered
that Dunbar’s sentences run consecutively with sentences imposed for 2016 convictions.
PROCEDURE
In State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021), the Washington
Supreme Court held that Washington’s then-existing drug possession statute violated the
due process clauses of the state and federal constitutions and was void. Because Daniel
Dunbar’s criminal history included two prior convictions for possession of a controlled
substance, the superior court resentenced Dunbar while lowering his offender scores for
the two 2017 convictions.
During resentencing, Daniel Dunbar sought a sentence at the low end of the
2 No. 39125-6-III State v. Dunbar
standard range. He submitted evidence of rehabilitation since the imposition of the 2017
sentence by underlining his participation in a substance abuse and addiction treatment
program. Dunbar presented five certificates earned through the RU Inside Jail & Prison
Program, including awards for “The Study of Building a Foundation for a Victorious
Life,” “Completion of the Overcomer Workbook,” and “Completing 26 Challenges in the
Recovery through God’s Truth Course.” Clerk’s Papers at 86-90. Dunbar also
completed parenting, public speaking, and anger management classes.
During resentencing, Daniel Dunbar argued that a lower sentence would qualify
him for work release and improve his chances for success on release from custody.
Dunbar highlighted his completion of an advanced degree in Heating, Ventilation, and
Air Conditioning and the promise of two job offers in that field should the court grant
work release.
Viktoria Enright, the victim of Daniel Dunbar’s 2017 convictions, submitted a
letter in support of a sentence low in the standard range. Enright wrote that she forgave
Dunbar for his crimes and that, despite his past mistakes, the resentencing court should
afford him a second chance. Daniel Dunbar’s significant other, Darlene Lockard, spoke
in support of Dunbar. Lockard declared that Dunbar’s work to obtain sobriety and
educate himself had given him the tools to obtain a happy and productive life.
We quote some of the resentencing court’s comments at the conclusion of the
resentencing hearing because the comments provide insight into the resentencing court’s
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view of its duties, which views other courts likely share:
So then what is before this Court is whether I should change the sentence imposed by Judge Clary that Judge Clary sentenced back in 2017. This matter actually went to a jury trial and the jury reached a verdict on— of guilty on Counts I and Count III. Count I being the possession of stolen motor vehicle, Count III being tampering with a witness. . . . .... Mr. Dunbar has provided the Court with information about what he has done since being incarcerated, and the problem is, is that it is basically a look back, and by that, I have regular resentencings that I do where the state’s position is, is that the Court cannot take that into consideration and shouldn’t take that into consideration. What [the prosecuting attorney], on behalf of the state, has argued is that Mr. Dunbar was, or had an offender score of 26, and based upon the vacate of a couple of convictions, his offender score is now a 25, which is frankly huge. It is an offender score that goes—well, it is close to being triple on a nine plus. In addition to that, under the tampering with a witness, his offender score was a 12, it was reduced to an 11. . . . Judge Clary sentenced at the high end here, based upon the facts and circumstances at the time of the offense, and ran it concurrent [consecutive] with the cause that I have just referenced. While [State v. Blake] may have changed some things, it didn’t—the sentencing ranges remain the same. I am looking at the criminal history here, which is quite extensive, going back, as has been outlined by the state, for felonies through 1991, and misdemeanors again, through 1991. It’s one of the longest that I’ve seen, Mr. Dunbar. . . . I very much appreciate what it is you have been doing to better yourself because you will be, I shouldn’t say relatively young, but still a relatively young individual once you are released from incarceration. This is a very long way of saying that I am going to stand by Judge Clary’s sentencing in this matter. On Count I, I will sentence at the high end, the 57 months, and on Count III to the 60 months as previously was done. That leaves you, Mr. Dunbar, in the same position you were before.
Report of Proceedings at 18-21.
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The resentencing court’s imposition of 57 months of confinement on count I and
60 months of confinement on count III matched the original sentence. The resentencing
court maintained the consecutive sentence originally imposed by the 2017 court with the
2016 convictions.
LAW AND ANALYSIS
Daniel Dunbar’s assignment of error claims the resentencing court committed
reversible error by failing to exercise necessary discretion when imposing the new
sentence. Dunbar emphasizes the court’s declination of considering his rehabilitation and
the court’s adopting the sentence imposed by the initial sentencing court. We recognize
that, contrary to Dunbar’s argument, the resentencing court may have exercised
independent discretion rather than considering itself bound by the sentencing court.
Issuing the same sentence does not necessarily correlate with the second court
considering itself precluded from exercising discretion. Nevertheless, the resentencing
court’s comments could be taken as adopting the sentencing court’s judgment without
reviewing the relevant facts and considerations anew. Regardless, we conclude that the
resentencing court committed reversible error when refusing to entertain Dunbar’s
request for a lower sentence based on his purported rehabilitation. In fairness to the
resentencing court, this court has failed to comprehensively and lucidly announce in a
published opinion the rule that resentencing under State v. Blake, if not all resentencing,
must be conducted de novo.
5 No. 39125-6-III State v. Dunbar
Daniel Dunbar’s assignment of error implicates the role played by a resentencing
court. We must decide if resentencing is limited to those arguments previously raised
before the superior court or whether, conversely, the resentencing court may hear new
evidence and entertain new arguments by the parties. We also resolve whether the
resentencing court should sentence based on its view of how the initial sentencing judge
would have ruled.
In State v. Edwards, 23 Wn. App. 2d 118, 514 P.3d 692 (2022), this court
addressed resentencing under State v. Blake, when the resentencing court must reduce the
offender score of the accused because of earlier convictions for possession of a controlled
substance. We wrote:
We remand for resentencing pursuant to Blake. Resentencing shall be de novo, with the parties free to advance any and all factual and legal arguments regarding Mr. Edwards’s offender score and sentencing range.
State v. Edwards, 23 Wn. App. 2d 118, 122 (2022). Division One of this court employed
identical language with regard to Blake resentencing in an unpublished decision. In re
Personal Restraint of Cratty, No. 83670-6-I (Wash. Ct. App. Oct. 24, 2022)
(unpublished), https://www.courts.wa.gov/opinions/pdf/836706.pdf. In none of the
decisions did this court elucidate why it deemed de novo sentencing appropriate. This
court followed State v. Edwards in State v. Vasquez, No. 38471-3-III (Wash. Ct. App.
May 2, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/384713.pdf, in a
comprehensive decision, but did not publish.
6 No. 39125-6-III State v. Dunbar
We hold that, unless the reviewing court restricts resentencing to narrow issues,
any resentencing should be de novo. During the resentencing, the resentencing judge
may consider rulings by another judge during the sentencing of the offender, but the
resentencing judge should exercise independent discretion. In this context we employ the
terms “resentencing court” or “resentencing judge” regardless of the number of
resentencings.
Generally, the law wishes to prevent relitigation of an issue after the party enjoyed
a full and fair opportunity to litigate the question. State v. Harrison, 148 Wn.2d 550,
561, 61 P.3d 1104 (2003). But in criminal cases, the court does not wish to strictly apply
this principle. Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 25 L. Ed. 2d 469
(1970); State v. Harrison, 148 Wn.2d 550, 561 (2003). In the interest of truth and fair
sentencing, a court on a sentence remand should be able to take new matters into account
on behalf of either the government or the defendant. United States v. Kinder, 980 F.2d
961 (5th Cir. 1992).
Remarkably, no court rule or statute addresses the extent of resentencing in
Washington, other states, or in the federal system. Nevertheless, most jurisdictions have
assembled a body of law concerning the arguments that a party may raise on
resentencing. Washington decisions have yet to thoroughly address the extent of
resentencing. Therefore, we also review foreign decisions.
7 No. 39125-6-III State v. Dunbar
The resentencing court is not bound by collateral estoppel when the original
sentence is no longer a final judgment on the merits. State v. Brown, 193 Wn.2d 280,
284-88, 440 P.3d 962 (2019); State v. Harrison, 148 Wn.2d 550, 561 (2003). Also, the
law of the case doctrine applies only when an earlier sentencing court decided the merits
of the question. State v. Harrison, 148 Wn.2d 550, 562 (2003). Neither a sentencing
court nor this reviewing court has earlier addressed the merits of Daniel Dunbar’s request
for a reduced sentence because of rehabilitation.
When a reviewing court reverses or vacates a sentence, resentencing is de novo in
nature. Bruce v. State, 311 So. 3d 51, 53 (Fla. Dist. Ct. App. 2021); State v. D.H., 2019-
Ohio-1017, 133 N.E.3d 922, 928 (Ct. App.); State v. Hardy, 250 N.C. App. 225, 792
S.E.2d 564, 567 (2016). Resentencing 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. Bruce v. State, 311 So. 3d 51, 53-54 (Fla.
Dist. Ct. App. 2021).
In Bruce v. State, the State contended, on appeal from resentencing, that defense
counsel stipulated to the offender being a prison releasee reoffender. The Florida Court
of Appeals returned the case to the trial court for resentencing anyway because the trial
court had failed to verify the offender’s consent to the stipulation.
In Betty v. State, 233 So. 3d 1149 (Fla. Dist. Ct. App. 2017), Ricarlo Betty, on
resentencing, asked the court to consider his youth. The resentencing judge refused to
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conduct de novo resentencing because it believed the original sentencing judge would not
have sentenced Betty as a youthful offender. The Court of Appeals remanded for de
novo resentencing.
If the Court of Appeals mandate limits the questions for resolution by the
resentencing court, the resentencing court must limit its review. United States v.
Cannady, 63 F.4th 259 (4th Cir. 2023); State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393
(2009). Nevertheless, the remand must clearly convey the intent to limit the scope of
resentencing. State v. Hardy, 792 S.E.2d 564, 569 (2016). By ordering resentencing
without any specific instructions or any prohibitions, the reviewing court returns the case
to the trial court to consider every aspect of the offender’s sentences de novo. State v.
Morrisey, 2022-Ohio-3519, 198 N.E.3d 554, 561 (Ct. App.); People v. Lampe, 327 Mich.
App. 104, 933 N.W.2d 314, 323 (2019). Without a limitation, the resentencing court
should consider sentencing de novo and entertain any relevant evidence that it could have
heard at the first sentencing. United States v. Cannady, 63 F.4th 259 (4th Cir. 2023);
United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003); United States v. Smith, 116
F.3d 857 (10th Cir. 1997); United States v. Atehortva, 69 F.3d 679 (2d Cir. 1995); United
States v. Ponce, 51 F.3d 820 (9th Cir. 1995); United States v. Bell, 5 F.3d 64, 67 (4th Cir.
1993); United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992); State v. Hardy, 792
S.E.2d 564, 567 (2016); United States v. Stinson, 97 F.3d 466, 468-69 (11th Cir. 1996).
9 No. 39125-6-III State v. Dunbar
A resentencing remand order carries a presumption of de novo resentencing. United
States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003).
Three federal Circuit Courts of Appeals reject the majority view of a presumption
of de novo resentencing. United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998);
United States v. Whren, 111 F.3d 956 (D.C. Cir. 1997); United States v. Parker, 101 F.3d
527 (7th Cir. 1996). This view criticizes the majority approach as allowing an offender a
second bite of the proverbial pear. United States v. Whren, 111 F.3d 956 (D.C. Cir.
1997). This criticism, however, should be panned since de novo resentencing works both
ways. The State also gets a second opportunity to present evidence and argument not
earlier forwarded.
Although the United States Supreme Court has not held that resentencing is de
novo in total, the court held that, when a reviewing court reverses and remands for
resentencing, the district court may consider evidence of rehabilitation since the earlier
sentencing. Pepper v. United States, 562 U.S. 476, 131 S. Ct. 1229, 179 L. Ed. 2d 196
(2011). The Supreme Court noted the policy behind sentencing of treating each offender
as a unique individual, whose human failings and improvements sometimes mitigate and
sometimes magnify the crime and punishment to ensue.
This Washington court also wishes to promote rehabilitation by rewarding it on
resentencing. Evidence of rehabilitation relates to the legislature’s explicit provision that
10 No. 39125-6-III State v. Dunbar
a sentence should “[o]ffer the offender an opportunity to improve himself or herself.”
RCW 9.94A.010(5).
In State v. Delbosque, 195 Wn.2d 106, 456 P.3d 806 (2020), the Washington
Supreme Court held that resentencing courts must consider the measure of rehabilitation
that has occurred since a youth was originally sentenced to life without parole when
resentencing pursuant to Washington’s Miller-fix statute. Miller v. Alabama, 567 U.S.
460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). State v. Delbosque concerns other
circumstances, but still evidences a policy of rewarding rehabilitation.
The State cites RCW 9.94A.340, which declares:
The sentencing guidelines and prosecuting standards apply equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant.
The State argues that rehabilitation does not relate to Daniel Dunbar’s crime or prior
record. The Washington Supreme Court, in State v. Law, 154 Wn.2d 85, 92-104, 110
P.3d 717 (2005), cited RCW 9.94A.340 to partly justify a prohibition on consideration of
personal factors to depart from a standard range sentence. The dissent in Law wrote that
the statute should be read more narrowly to relate to discrimination based on race, sex,
economic status, education, or family history. State v. Law, 154 Wn.2d 85, 109-18
(2005) (Sanders, J., dissenting). Our review of other caselaw interpreting
RCW 9.94A.340 reveals no rhyme or reason for applying RCW 9.94A.340 beyond Law’s
11 No. 39125-6-III State v. Dunbar
holding. We decline to extend the ambiguous statute to prohibit consideration of
rehabilitation on resentencing.
The State additionally argues that permitting resentencing courts to revise
sentences for offenders who undergo Blake resentencing, without any allowance for
offenders without simple drug possession convictions to request analogous
reconsideration, reveals fundamental inequity in Daniel Dunbar’s proposed rule. We
agree that the Sentencing Reform Act of 1981, chapter 9.94A RCW, seeks sentences that
are “commensurate with the punishment imposed on others committing similar offenses.”
RCW 9.94A.010(3). We acknowledge that not all offenders who might demonstrate
compelling evidence of rehabilitation are granted resentencings. We agree with the State
of this inequity. But the remedy for this unfairness does not lie in rejecting consideration
of rehabilitation on resentencing.
On remand, the sentencing court should be free to consider any matters relevant to
sentencing, even those that may not have been raised at the first sentencing hearing, as if
it were sentencing de novo. United States v. Crooked Arm, 853 F.3d 1065, 1069 (9th Cir.
2017). The offender, on resentencing, may even raise an argument which the appeals
court ruled waived in the initial appeal. United States v. Caterino, 29 F.3d 1390, 1395-96
(9th Cir. 1994), overruled on other grounds by Witte v. United States, 515 U.S. 389, 115
S. Ct. 2199, 132 L. Ed. 2d 351 (1995).
12 No. 39125-6-III State v. Dunbar
During resentencing, the trial court may impose the identical sentence or a greater
or lesser sentence within its discretion. State v. D.H., 2019-Ohio-1017, 133 N.E.3d 922,
928. The resentencing judge may not rely on a previous court’s sentence determination
and fail to conduct its own independent review. State v. Hardy, 792 S.E.2d 564, 567
(N.C.C.A. 2016). Otherwise, the offender is deprived of de novo review. State v. Hardy,
792 S.E.2d 564, 567 (2016).
Daniel Dunbar’s resentencing court did not review resentencing based on any
mandate from this court, but rather on a motion to resentence under State v. Blake.
Although the motion did not expressly ask for de novo resentencing and the motion asked
for resentencing under Blake, the motion did not expressly limit its scope. Therefore, we
apply the presumption of de novo resentencing.
Daniel Dunbar also argues that the resentencing court failed to exercise discretion
when ordering a consecutive sentence under RCW 9.94A.589(3) when the court lacked
independent knowledge about why the 2017 sentencing court imposed a consecutive
sentence. In turn, without cross-appealing, the State argues that both the original
sentencing court and the resentencing court underestimated Daniel Dunbar’s offender
scores. During resentencing, both parties may forward those arguments.
13 No. 39125-6-III State v. Dunbar
CONCLUSION
We remand for another resentencing, during which the superior court should
consider new evidence and arguments of the parties, including evidence of Daniel
Dunbar’s rehabilitation. The resentencing shall be de novo.
_________________________________ Fearing, C.J.
WE CONCUR:
______________________________ Lawrence-Berrey, J.
______________________________ Pennell, J.