FILED DECEMBER 5, 2019 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STATE OF WASHINGTON, ) No. 35976-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JAYME LEE RODGERS, ) ) Appellant. )
SIDDOWAY, J. — Jayme Lee Rodgers was resentenced in 2017 for convictions
originally imposed in 2014. The resentencing followed this court’s decision affirming in
part and reversing in part his judgment and sentence, and the Washington Supreme
Court’s decision reversing this court on a matter this court had affirmed. See State v.
Weatherwax, 193 Wn. App. 667, 376 P.3d 1150 (2016) (published in part), rev’d, State v.
Weatherwax, 188 Wn.2d 139, 392 P.3d 1054 (2017).
Although Mr. Rodgers makes six assignments of error, one is dispositive: his
contention that the trial court erred by refusing to consider his request for a mitigated
exceptional sentence. At the time of the resentencing, the State argued the case was
remanded for merely ministerial changes to the judgment and sentence, not a full
resentencing. On appeal, the State argues that the trial court recognized its discretion to No. 35976-0-III State v. Rodgers
entertain the request for an exceptional sentence but chose not to, with the result that Mr.
Rodgers has no exercise of judgment to appeal.
We are satisfied from the trial court’s statements that it believed it lacked
discretion to entertain Mr. Rodgers’s request for an exceptional sentence. This was error.
Because we reverse the sentence and remand for a full resentencing, the other oversights
and issues raised by Mr. Rodgers—errors and oversights the State concedes—can be
addressed at that time. To assist the trial court and the parties at the resentencing, we
recap those other errors and oversights at the conclusion of this opinion.
FACTS AND PROCEDURAL BACKGROUND
On September 24, 2013, Jayme Lee Rodgers and Thomas Weatherwax verbally
threatened an alleged rival gang member inside a convenience store in Spokane. A little
while later, in the parking lot of that store, they fired a series of shots at the gang member
and two bystanders. Weatherwax, 188 Wn.2d at 144.
The State ultimately charged Mr. Rodgers with seven crimes: three counts of
drive-by shooting, three counts of first degree assault, and one count of conspiracy to
commit first degree assault. Id. At the conclusion of Mr. Rodgers’s and Mr.
Weatherwax’s joint trial, the jury found them guilty as charged and returned “yes” special
verdicts to four firearm enhancements and three gang aggravators for each defendant. Id.
The trial court sentenced Mr. Rodgers to 546 months (45.5 years) in prison. Id. at 145.
2 No. 35976-0-III State v. Rodgers
Mr. Rodgers and Mr. Weatherwax appealed to this court, which reversed the
drive-by shooting convictions but affirmed the trial court’s offender score calculations
and sentences. Calculation of the challenged offender score had turned on the proper
construction of RCW 9.94A.589(1)(b) as applied to a defendant whose serious violent
offenses include both completed and anticipatory offenses. This court’s construction of
the statute—which differed from its construction by Division One in State v. Breaux, 167
Wn. App. 166, 179, 273 P.3d 447 (2012)—was reversed by the Supreme Court. The
Supreme Court held that the first degree assault and conspiracy to commit first degree
assault have the same seriousness level, and the trial court should have chosen the
conspiracy count, with its lower standard range, as the starting point for calculating the
consecutive sentences. Weatherwax, 188 Wn.2d at 156. It “reverse[d] and remand[ed]
for resentencing consistent with th[e] opinion.” Id.
On remand, Mr. Rodgers asked the trial court to impose a base sentence below the
standard range and to run counts and enhancements concurrently. He relied for his
request on his youth (he was 22 years old when he committed the crimes) and argument
that the operation of the multiple offense policy of RCW 9.94A.589 resulted in a
presumptive sentence that was clearly excessive in light of the purpose of the Sentencing
Reform Act of 1981, chapter 9.94A RCW. He supported his request with letters, a recent
mental health evaluation, certificates he had received in prison, and communications
between the defense and the State about what would be a reasonable sentence.
3 No. 35976-0-III State v. Rodgers
The State argued that the Supreme Court had directed the trial court on remand to
make only “technical” sentencing corrections, not to conduct a full resentencing. Report
of Proceedings (RP) at 21.
At the sentencing hearing, the trial court expressed its belief that it had received “a
pretty straightforward direction from the [Supreme C]ourt.” RP at 26. It pointed to the
Supreme Court’s statement in its introductory summary of the issue on appeal that it was
“revers[ing] and remand[ing] for resentencing using the approach taken by the Court of
Appeals in Breaux.” Weatherwax, 188 Wn.2d at 144. The trial court also pointed to the
last paragraph of the Supreme Court’s decision, captioned “Conclusion,” in which the
Supreme Court stated, “[t]he trial court must choose the offense whose standard range is
lower as the starting point for calculating the consecutive sentences,” and, “We reverse
and remand for resentencing consistent with this opinion.” Id. at 156; RP at 27. Based
on those perceived directions, the trial court explained its understanding of the posture on
remand:
I’m aware if we had sentenced this case today, we might have different arguments than we had in August of ’14. And I’m aware that we might have a different approach on some things, at least would have a different record, because we would talk about different things a[t] least as to that. But my position is the court of appeals looked at this, the Supreme Court looked at it, and ultimately sent me a specific direction and mandate and said, you are to do this. And I think I’m bound by that.
RP at 27-28.
4 No. 35976-0-III State v. Rodgers
The trial court allowed Mr. Rodgers to speak and listened to a few individuals who
spoke on his behalf. But in explaining the sentence it was going to impose, it did no
more than use the conspiracy count as its starting point for calculating the offender score
and impose midrange sentences, which is what the State represented the court had done at
the original sentencing. Mr. Rodgers appeals.
ANALYSIS
When an appellate court remands a defendant’s case for resentencing, the trial
court has discretion to resentence the defendant on all counts. State v. Toney, 149 Wn.
App. 787, 793, 205 P.3d 944 (2009). When a defendant’s case is remanded for only a
ministerial correction, however, the trial court does not have discretion to conduct a full
resentencing. Id. at 792.
A different issue arises when a trial court has the authority to conduct a full
resentencing on remand but chooses not to exercise its independent judgment at that time.
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FILED DECEMBER 5, 2019 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. 35976-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JAYME LEE RODGERS, ) ) Appellant. )
SIDDOWAY, J. — Jayme Lee Rodgers was resentenced in 2017 for convictions
originally imposed in 2014. The resentencing followed this court’s decision affirming in
part and reversing in part his judgment and sentence, and the Washington Supreme
Court’s decision reversing this court on a matter this court had affirmed. See State v.
Weatherwax, 193 Wn. App. 667, 376 P.3d 1150 (2016) (published in part), rev’d, State v.
Weatherwax, 188 Wn.2d 139, 392 P.3d 1054 (2017).
Although Mr. Rodgers makes six assignments of error, one is dispositive: his
contention that the trial court erred by refusing to consider his request for a mitigated
exceptional sentence. At the time of the resentencing, the State argued the case was
remanded for merely ministerial changes to the judgment and sentence, not a full
resentencing. On appeal, the State argues that the trial court recognized its discretion to No. 35976-0-III State v. Rodgers
entertain the request for an exceptional sentence but chose not to, with the result that Mr.
Rodgers has no exercise of judgment to appeal.
We are satisfied from the trial court’s statements that it believed it lacked
discretion to entertain Mr. Rodgers’s request for an exceptional sentence. This was error.
Because we reverse the sentence and remand for a full resentencing, the other oversights
and issues raised by Mr. Rodgers—errors and oversights the State concedes—can be
addressed at that time. To assist the trial court and the parties at the resentencing, we
recap those other errors and oversights at the conclusion of this opinion.
FACTS AND PROCEDURAL BACKGROUND
On September 24, 2013, Jayme Lee Rodgers and Thomas Weatherwax verbally
threatened an alleged rival gang member inside a convenience store in Spokane. A little
while later, in the parking lot of that store, they fired a series of shots at the gang member
and two bystanders. Weatherwax, 188 Wn.2d at 144.
The State ultimately charged Mr. Rodgers with seven crimes: three counts of
drive-by shooting, three counts of first degree assault, and one count of conspiracy to
commit first degree assault. Id. At the conclusion of Mr. Rodgers’s and Mr.
Weatherwax’s joint trial, the jury found them guilty as charged and returned “yes” special
verdicts to four firearm enhancements and three gang aggravators for each defendant. Id.
The trial court sentenced Mr. Rodgers to 546 months (45.5 years) in prison. Id. at 145.
2 No. 35976-0-III State v. Rodgers
Mr. Rodgers and Mr. Weatherwax appealed to this court, which reversed the
drive-by shooting convictions but affirmed the trial court’s offender score calculations
and sentences. Calculation of the challenged offender score had turned on the proper
construction of RCW 9.94A.589(1)(b) as applied to a defendant whose serious violent
offenses include both completed and anticipatory offenses. This court’s construction of
the statute—which differed from its construction by Division One in State v. Breaux, 167
Wn. App. 166, 179, 273 P.3d 447 (2012)—was reversed by the Supreme Court. The
Supreme Court held that the first degree assault and conspiracy to commit first degree
assault have the same seriousness level, and the trial court should have chosen the
conspiracy count, with its lower standard range, as the starting point for calculating the
consecutive sentences. Weatherwax, 188 Wn.2d at 156. It “reverse[d] and remand[ed]
for resentencing consistent with th[e] opinion.” Id.
On remand, Mr. Rodgers asked the trial court to impose a base sentence below the
standard range and to run counts and enhancements concurrently. He relied for his
request on his youth (he was 22 years old when he committed the crimes) and argument
that the operation of the multiple offense policy of RCW 9.94A.589 resulted in a
presumptive sentence that was clearly excessive in light of the purpose of the Sentencing
Reform Act of 1981, chapter 9.94A RCW. He supported his request with letters, a recent
mental health evaluation, certificates he had received in prison, and communications
between the defense and the State about what would be a reasonable sentence.
3 No. 35976-0-III State v. Rodgers
The State argued that the Supreme Court had directed the trial court on remand to
make only “technical” sentencing corrections, not to conduct a full resentencing. Report
of Proceedings (RP) at 21.
At the sentencing hearing, the trial court expressed its belief that it had received “a
pretty straightforward direction from the [Supreme C]ourt.” RP at 26. It pointed to the
Supreme Court’s statement in its introductory summary of the issue on appeal that it was
“revers[ing] and remand[ing] for resentencing using the approach taken by the Court of
Appeals in Breaux.” Weatherwax, 188 Wn.2d at 144. The trial court also pointed to the
last paragraph of the Supreme Court’s decision, captioned “Conclusion,” in which the
Supreme Court stated, “[t]he trial court must choose the offense whose standard range is
lower as the starting point for calculating the consecutive sentences,” and, “We reverse
and remand for resentencing consistent with this opinion.” Id. at 156; RP at 27. Based
on those perceived directions, the trial court explained its understanding of the posture on
remand:
I’m aware if we had sentenced this case today, we might have different arguments than we had in August of ’14. And I’m aware that we might have a different approach on some things, at least would have a different record, because we would talk about different things a[t] least as to that. But my position is the court of appeals looked at this, the Supreme Court looked at it, and ultimately sent me a specific direction and mandate and said, you are to do this. And I think I’m bound by that.
RP at 27-28.
4 No. 35976-0-III State v. Rodgers
The trial court allowed Mr. Rodgers to speak and listened to a few individuals who
spoke on his behalf. But in explaining the sentence it was going to impose, it did no
more than use the conspiracy count as its starting point for calculating the offender score
and impose midrange sentences, which is what the State represented the court had done at
the original sentencing. Mr. Rodgers appeals.
ANALYSIS
When an appellate court remands a defendant’s case for resentencing, the trial
court has discretion to resentence the defendant on all counts. State v. Toney, 149 Wn.
App. 787, 793, 205 P.3d 944 (2009). When a defendant’s case is remanded for only a
ministerial correction, however, the trial court does not have discretion to conduct a full
resentencing. Id. at 792.
A different issue arises when a trial court has the authority to conduct a full
resentencing on remand but chooses not to exercise its independent judgment at that time.
In that event, the trial court’s actions give rise to no new appealable issues, meaning the
defendant’s right to appeal in state court was exhausted with issuance of the mandate in
the first appeal. See State v. Kilgore, 167 Wn.2d 28, 40, 216 P.3d 393 (2009) (citing
State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993)).
A trial court’s mistaken belief that it lacks discretion to impose a mitigated
exceptional sentence is error. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106
(2017). While no defendant is entitled to challenge a sentence within the standard range,
5 No. 35976-0-III State v. Rodgers
that rule does not preclude a defendant from challenging on appeal the legal
determinations, such as a trial court’s determination of the extent of its discretion, by
which the sentencing court reaches its decision. Id.
Both parties in this appeal are right about the law on these issues; their
disagreement is over what the trial court understood about its discretion. When defense
counsel was invited to address the court at the resentencing, she stated,
[D]epending on how the Court feels—or what the Court feels its authority to do today, that kind of dictates where I would like to address my arguments. . . .
RP at 25. Reminding the court of her reliance in her brief on State v. Toney and In re
Personal Restraint of Light-Roth,1 she continued:
I was present during the resentencing of Mr. Weatherwax, the co- defendant. It was my understanding from what I observed there that the Court probably doesn’t—didn’t, at least at that time—agree with my interpretation of the law. So I would like to start by asking the Court if we can resolve that issue to begin with and then proceed.
RP at 25. The trial court agreed to resolve that issue to begin with and provided the
explanation summarized above as to why it would not entertain the request for a
mitigated exceptional sentence.
1 200 Wn. App. 149, 401 P.3d 459 (2017), rev’d, 191 Wn.2d 328, 422 P.3d 444 (2018), recons. denied, No. 94950-6 (Wash. Aug. 28, 2018). Light-Roth involved the distinguishable context of collateral review.
6 No. 35976-0-III State v. Rodgers
On appeal, the State argues that the issue the trial court “resolve[d] . . . to begin
with,”—knowing of its discretion—was whether it would exercise that discretion.
According to the State, the trial court announced that it would not exercise its discretion.
We disagree. We are satisfied that the trial court, encouraged by the State,
mistakenly believed that it was strictly limited to a ministerial recalculation of the
offender score in accordance with Breaux’s approach. We draw this conclusion largely
from the court’s explanation that it perceived the Supreme Court’s decision as providing
a “pretty straightforward direction” and its concluding remark, “I think I’m bound by
that.” RP at 26, 28. In addition, the trial court never expressed disagreement with the
State’s position that the Supreme Court had authorized it to make only ministerial
changes. And it never explained why, if it believed it had discretion, it was choosing not
to exercise it.
Because the trial court mistakenly believed Mr. Rodgers was not entitled to a full
resentencing, a further resentencing is required. In resentencing Mr. Rodgers, we trust
the parties and the court will avoid the following oversights that Mr. Rodgers assigns as
additional errors on appeal:
Imposing a community custody condition requiring “‘that the defendant not be allowed to have any association or contact with known felons or gang members or their associates,’” which we previously held was unconstitutionally vague, see Weatherwax, 193 Wn. App. at 680-81 (emphasis omitted) (Mr. Rodger’s assignments of error 2 and 3), and
7 No. 35976-0-III State v. Rodgers
• Imposing a mandatory minimum term of confinement of 60 months on counts 1, 3, and 4, which we previously reversed. Weatherwax, No. 32708-6-111, slip op. (unpublished portion) at 23, https://www.courts.wa.gov/opinions/pdf/327086 .pub.pdf (Mr. Rodger's assignment of error 4).
In determining whether to impose court costs and a DNA 2 collection fee, the trial court
will have the opportunity to apply current law, thereby addressing Mr. Rodgers's
assignment of error 5.
We reverse and remand for proceedings consistent with this opinion. 3
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.
WE CONCUR:
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2 Deoxyribonucleic acid. 3 Since Mr. Rodgers is the prevailing party, we need not address his assignment of error 6, relating to costs on appeal.