IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint DIVISION ONE Petition of: No. 82396-5-I DUNG HOANG LE, UNPUBLISHED OPINION Appellant.
DWYER, J. — In 1993, a jury convicted Dung Hoang Le of both murder in
the first degree and the inferior degree offense of murder in the second degree.
More than 25 years later, in a personal restraint petition (PRP), Le argued that
the trial court’s entry of judgment on the inferior degree offense conviction
violated his right to be free of double jeopardy. We agreed, and remanded the
matter to the trial court to vacate the conviction of murder in the second degree
and to strike any reference to it from both Le’s judgment and sentence and the
trial court’s findings of fact and conclusions of law. The findings and conclusions
had been entered in support of the sentencing court’s imposition of an
exceptional sentence.
Le now appeals from the trial court’s order vacating the conviction of
murder in the second degree. According to Le (1) the trial court failed to comply
with our directions on remand, (2) a change in the law entitles him to a No. 82396-5-I/2
resentencing hearing so that his youth may be considered, and (3) his right to a
public trial was violated. Finding no entitlement to relief, we affirm.
I
In 1993, Dung Hoang Le was convicted of the murder of Mayme Lui and
the extortion of her family.1 The jury convicted Le of both first degree felony
murder, predicated on the commission of burglary and robbery, and murder in
the second degree. Le’s standard sentencing range was 261-347 months. The
sentencing court imposed an exceptional sentence of 820 months after finding
that the victim was particularly vulnerable and that the attack on Lui manifested
deliberate cruelty to the victim.
In January 2020, we considered Le’s PRP asserting that the inclusion of
the alternative conviction violated his right to be free of double jeopardy. See In
re Pers. Restraint of Le, No. 78242-8-I, slip op. at 1-3 (Wash. Ct. App. Jan. 21,
2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/782428.pdf (Le II).
The State conceded the double jeopardy violation and we accepted the State’s
concession. Le II, No. 78242-8-I, slip op. at 3. However, we rejected Le’s
argument that the double jeopardy violation required resentencing. We
explained that
[h]ere, while the trial court noted in both the Judgment and Sentence and [findings of fact and conclusions of law on imposition of an exceptional sentence (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
1 The underlying facts of Le’s 1992 crime appear in our unpublished opinion resolving his
direct appeal, State v. Le, noted at 82 Wn. App. 1010, 1996 WL 312492 (Le I).
2 No. 82396-5-I/3
conviction in the Judgment and Sentence. In the FFCL, the court never discussed the [second degree] intentional murder conviction as a justification for the exceptional sentence. Instead, the FFCL provides that the aggravating factors of particular vulnerability of the victim and deliberate cruelty supported the exceptional sentence. See Le I, 1996 WL 312492, at *2 (“The trial court’s reasons for the imposition of the exceptional 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.
For these reasons, we decline to remand for resentencing.
Le II, No. 78242-8-I, slip op. at 5-6 (footnotes omitted).
On remand, the trial court ordered that the conviction for murder in the
second degree be vacated and any reference to it stricken from Le’s judgment
and sentence and the findings of fact and conclusions of law entered to support
imposition of the exceptional sentence.
Le appeals.
II
Le first contends that the trial court on remand did not comply with our
directions when it vacated the conviction of murder in the second degree and
ordered stricken any references to it in either Le’s judgment and sentence or the
findings of fact and conclusions of law entered to support imposition of the
exceptional sentence. This is so, according to Le, because the court order did
3 No. 82396-5-I/4
not “decide which findings and conclusions it had to strike or whether the
remaining findings will still support the sentence.”2 We disagree.
We remanded the matter 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.” Le II, No. 78242-8-I, slip op. at 3.
The trial court ordered
that the conviction for MURDER IN THE SECOND DEGREE ONLY is vacated consistent with the Court of Appeals mandate issued on August 14, 2020. Any reference to the Murder in the second degree conviction shall be stricken from the Judgment and Sentence and the Finding[s] of Fact and Conclusions of Law on Imposition of Exceptional Sentence.
This is entirely consistent with our instructions. Furthermore, Le’s
assertion that he had no opportunity to argue as to which findings contained
references is not consistent with the record. Le had such an opportunity at the
hearing and did not do so. Rather, Le’s counsel stated that he was “signing off
on the proposed orders with no changes—as provided by [the prosecutor] and
submitting those to the Court.”
We previously denied Le’s request for resentencing. We remanded this
cause to the trial court for the limited purpose of vacating a conviction and
removing references to it from both Le’s judgment and sentence and the findings
of fact and conclusions of law entered to support imposition of the exceptional
sentence. The trial court did not err by hewing closely to our instructions.
2 Br. of Appellant at 24.
4 No. 82396-5-I/5
III
Le next requests that we “reevaluate”3 our previous decision denying his
request for resentencing so that the trial court may consider his youth at the time
of his offense,4 following our Supreme Court’s decision in In re Pers. Restraint of
Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021). We decline to do so. Despite
Le’s contention to the contrary, Le’s youth at the time of the offense was not
raised—or even mentioned—in his PRP. Accordingly, any legal significance of
Le’s youth in light of intervening case law is not properly before us. See In re
Pers. Restraint of Khan, 184 Wn.2d 679, 690 n.4, 363 P.3d 577 (2015).
IV
Finally, Le contends that his right to a public trial was violated. This is so,
according to Le, because the telephonic proceeding on remand constituted an
improper court closure. As the proceeding took place in open court, we disagree.
The state and federal constitutions guarantee the right to a public trial.
Article I, section 22 of the Washington Constitution provides: “In criminal
prosecutions the accused shall have the right . . .
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint DIVISION ONE Petition of: No. 82396-5-I DUNG HOANG LE, UNPUBLISHED OPINION Appellant.
DWYER, J. — In 1993, a jury convicted Dung Hoang Le of both murder in
the first degree and the inferior degree offense of murder in the second degree.
More than 25 years later, in a personal restraint petition (PRP), Le argued that
the trial court’s entry of judgment on the inferior degree offense conviction
violated his right to be free of double jeopardy. We agreed, and remanded the
matter to the trial court to vacate the conviction of murder in the second degree
and to strike any reference to it from both Le’s judgment and sentence and the
trial court’s findings of fact and conclusions of law. The findings and conclusions
had been entered in support of the sentencing court’s imposition of an
exceptional sentence.
Le now appeals from the trial court’s order vacating the conviction of
murder in the second degree. According to Le (1) the trial court failed to comply
with our directions on remand, (2) a change in the law entitles him to a No. 82396-5-I/2
resentencing hearing so that his youth may be considered, and (3) his right to a
public trial was violated. Finding no entitlement to relief, we affirm.
I
In 1993, Dung Hoang Le was convicted of the murder of Mayme Lui and
the extortion of her family.1 The jury convicted Le of both first degree felony
murder, predicated on the commission of burglary and robbery, and murder in
the second degree. Le’s standard sentencing range was 261-347 months. The
sentencing court imposed an exceptional sentence of 820 months after finding
that the victim was particularly vulnerable and that the attack on Lui manifested
deliberate cruelty to the victim.
In January 2020, we considered Le’s PRP asserting that the inclusion of
the alternative conviction violated his right to be free of double jeopardy. See In
re Pers. Restraint of Le, No. 78242-8-I, slip op. at 1-3 (Wash. Ct. App. Jan. 21,
2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/782428.pdf (Le II).
The State conceded the double jeopardy violation and we accepted the State’s
concession. Le II, No. 78242-8-I, slip op. at 3. However, we rejected Le’s
argument that the double jeopardy violation required resentencing. We
explained that
[h]ere, while the trial court noted in both the Judgment and Sentence and [findings of fact and conclusions of law on imposition of an exceptional sentence (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
1 The underlying facts of Le’s 1992 crime appear in our unpublished opinion resolving his
direct appeal, State v. Le, noted at 82 Wn. App. 1010, 1996 WL 312492 (Le I).
2 No. 82396-5-I/3
conviction in the Judgment and Sentence. In the FFCL, the court never discussed the [second degree] intentional murder conviction as a justification for the exceptional sentence. Instead, the FFCL provides that the aggravating factors of particular vulnerability of the victim and deliberate cruelty supported the exceptional sentence. See Le I, 1996 WL 312492, at *2 (“The trial court’s reasons for the imposition of the exceptional 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.
For these reasons, we decline to remand for resentencing.
Le II, No. 78242-8-I, slip op. at 5-6 (footnotes omitted).
On remand, the trial court ordered that the conviction for murder in the
second degree be vacated and any reference to it stricken from Le’s judgment
and sentence and the findings of fact and conclusions of law entered to support
imposition of the exceptional sentence.
Le appeals.
II
Le first contends that the trial court on remand did not comply with our
directions when it vacated the conviction of murder in the second degree and
ordered stricken any references to it in either Le’s judgment and sentence or the
findings of fact and conclusions of law entered to support imposition of the
exceptional sentence. This is so, according to Le, because the court order did
3 No. 82396-5-I/4
not “decide which findings and conclusions it had to strike or whether the
remaining findings will still support the sentence.”2 We disagree.
We remanded the matter 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.” Le II, No. 78242-8-I, slip op. at 3.
The trial court ordered
that the conviction for MURDER IN THE SECOND DEGREE ONLY is vacated consistent with the Court of Appeals mandate issued on August 14, 2020. Any reference to the Murder in the second degree conviction shall be stricken from the Judgment and Sentence and the Finding[s] of Fact and Conclusions of Law on Imposition of Exceptional Sentence.
This is entirely consistent with our instructions. Furthermore, Le’s
assertion that he had no opportunity to argue as to which findings contained
references is not consistent with the record. Le had such an opportunity at the
hearing and did not do so. Rather, Le’s counsel stated that he was “signing off
on the proposed orders with no changes—as provided by [the prosecutor] and
submitting those to the Court.”
We previously denied Le’s request for resentencing. We remanded this
cause to the trial court for the limited purpose of vacating a conviction and
removing references to it from both Le’s judgment and sentence and the findings
of fact and conclusions of law entered to support imposition of the exceptional
sentence. The trial court did not err by hewing closely to our instructions.
2 Br. of Appellant at 24.
4 No. 82396-5-I/5
III
Le next requests that we “reevaluate”3 our previous decision denying his
request for resentencing so that the trial court may consider his youth at the time
of his offense,4 following our Supreme Court’s decision in In re Pers. Restraint of
Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021). We decline to do so. Despite
Le’s contention to the contrary, Le’s youth at the time of the offense was not
raised—or even mentioned—in his PRP. Accordingly, any legal significance of
Le’s youth in light of intervening case law is not properly before us. See In re
Pers. Restraint of Khan, 184 Wn.2d 679, 690 n.4, 363 P.3d 577 (2015).
IV
Finally, Le contends that his right to a public trial was violated. This is so,
according to Le, because the telephonic proceeding on remand constituted an
improper court closure. As the proceeding took place in open court, we disagree.
The state and federal constitutions guarantee the right to a public trial.
Article I, section 22 of the Washington Constitution provides: “In criminal
prosecutions the accused shall have the right . . . to have a speedy public trial.”
The Sixth Amendment to the United States Constitution states: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.” The
right to a public trial is not absolute, as a courtroom may be closed to the public if
the trial court justifies the closure by conducting an on-the-record balancing of
several factors enumerated in State v. Bone–Club, 128 Wn.2d 254, 258-59, 906
P.2d 325 (1995). A defendant asserting violation of his public trial rights must
3 Br. of Appellant at 29. 4 Le was 19 years old at the time of the offense.
5 No. 82396-5-I/6
show that a closure occurred. State v. Njonge, 181 Wn.2d 546, 556, 334 P.3d
1068 (2014). We “‘will not, for the purpose of finding reversible error, presume
the existence of facts as to which the record is silent.’” State v. Jasper, 174
Wn.2d 96, 124, 271 P.3d 876 (2012) (quoting Barker v. Weeks, 182 Wash. 384,
391, 47 P.2d 1 (1935)).
Le asserts that the “proceedings were not broadcast or otherwise
available to the public.”5 Although Le, his counsel, and the prosecutor appeared
telephonically, the minutes reflect that a judge and a court clerk were present in
the courtroom. There is nothing in the record indicating that the courtroom was
closed to the public or that there was no broadcast. Furthermore, the resulting
order vacating the conviction, signed by Le’s counsel, states that it was “DONE
IN OPEN COURT.” Le thus fails to demonstrate that a closure necessitating a
Bone-Club analysis occurred.
Affirmed.
WE CONCUR:
5 Br. of Appellant at 39.