State Of Washington, V. Joshua D. Lambert

• Court: Court of Appeals of Washington
• Decided: January 24, 2022
• Docket: 78621-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 78621-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION

JOSHUA DAVID LAMBERT,

Appellant.

APPELWICK, J. — A jury convicted Lambert of eight offenses, including

murder, kidnapping, and burglary. This court reversed two of Lambert’s

convictions on appeal. On remand, the trial court resentenced Lambert on his six

remaining convictions. Lambert now appeals from the resentencing. He contends

the charging document failed to adequately apprise him of the elements of the

charged crimes. Lambert also raises claims related to restitution, his offender

score, exceptional sentence, waiver of counsel on remand, and a motion for

funding. We remand for correction of Lambert’s offender score consistent with

State v. Blake, but otherwise affirm his judgment and sentence.1

FACTS

During a crime spree that took place on a single day in October 2011,

Joshua Lambert murdered both of his grandfathers at their respective homes,

attacked and tied up his great-aunt, and committed a number of other crimes.

1197 Wn.2d 170, 481 P.3d 521 (2021). No. 78621-1-I/2

State v. Lambert, 199 Wn. App. 51, 56-58, 395 P. 3d 1080 (2017). The State

charged Lambert with two counts of murder in the first degree, kidnapping in the

first degree, three counts of burglary in the first degree, taking a motor vehicle

without permission, and unlawful possession of a firearm. Id. at 58. The State

asserted that Lambert was armed with a deadly weapon when he committed

several of the charged crimes and alleged a number of aggravating factors under

RCW 9.94A.535(3). Id.

Based on the evidence presented at trial, the trial court rejected Lambert’s

motion for acquittal because he did not meet his burden to prove he was not guilty

by reason of insanity. Id. at 68. The jury returned verdicts finding Lambert guilty

of all charged crimes and found that he was armed with a deadly weapon as to five

counts. Id. at 68-69. The jury also found aggravating factors as to both counts of

murder, kidnapping, and one of the burglary counts. Specifically, the jury found

particular vulnerability of victims (three counts); use of a position of trust to facilitate

crimes (three counts); deliberate cruelty (one count); destructive and foreseeable

impact of the crime on individuals other than the victim (one count); and

commission of burglary in the presence of a victim (one count). See RCW

9.94A.535(3)(a), (b), (n), (r), (u). Based on these findings, the court imposed an

exceptional sentence of 1,200 months (100 years). Id. at 69.

Lambert appealed his convictions and sentence. We determined there was

insufficient evidence to support Lambert’s conviction of felony murder of Lambert’s

maternal grandfather predicated on the burglary of Lambert’s mother’s home—one

of the alternative charged means of first degree murder. Id. at 55. As a result, we

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reversed two convictions: Lambert’s murder conviction (of his maternal

grandfather) and his burglary conviction (of his mother’s home), and held that the

State could retry Lambert on only premeditated murder and burglary based on the

deadly weapon prong. Id.

The State ultimately elected not to retry Lambert and the trial court

dismissed the two reversed charges on the State’s motion. In June 2018, the trial

court resentenced Lambert on the remaining convictions. Lambert represented

himself, as he had during most of the initial trial proceedings, and presented

exhibits and the testimony of several witnesses at the resentencing hearing.

Based on the 2013 jury findings of aggravating factors related to three counts that

were unaffected by our decision on appeal (murder, kidnapping, and burglary), the

trial court again imposed an exceptional sentence, but reduced the length of the

sentence to 80 years. Lambert appeals.

DISCUSSION

I. Charging Document

Lambert argues that five of his six convictions must be reversed because

the amended information failed to adequately allege the elements of the charged

crimes. He further contends that he can raise these issues in his appeal from

resentencing although he did not challenge the sufficiency of the charging

document at trial or in his first appeal.

“The general rule is that a defendant is prohibited from raising issues on a

second appeal that were or could have been raised on the first appeal.” State v.

Mandanas, 163 Wn. App. 712, 716, 262 P.3d 522 (2011). Even if the issue raised

3 No. 78621-1-I/4

is “critical,” appellate courts “do not permit a party to ignore an issue on the first

appeal only to raise the issue on remand.” State v. Fort, 190 Wn. App. 202, 228,

360 P.3d 820 (2015). As our Supreme Court has explained, “[F]inality and

reviewability are intrinsically bound . . . ‘[o]nce an appellate decision is final, review

as a matter of right is exhausted.’” State v. Kilgore, 167 Wn.2d 28, 36-38, 216

P.3d 393 (2009) (quoting State v. Hanson, 151 Wn.2d 783, 790, 91 P.3d 888

(2004)).

RAP 2.5 provides exceptions to this rule. Under RAP 2.5(c)(1), an appellate

court “may at the instance of a party review and determine the propriety of a

decision of the trial court even though a similar decision was not disputed in an

earlier review of the same case.” But, “‘[t]his rule does not revive automatically

every issue or decision which was not raised in an earlier appeal.’” State v.

Gregory, 192 Wn.2d 1, 31, 427 P.3d 621 (2018) (quoting State v. Barberio, 121

Wn.2d 48, 50, 846 P.2d 519 (1993)). RAP 2.5(c)(1) applies “only if the trial court,

on remand and in the exercise of its own independent judgment, considered and

ruled again on that issue.” Id. (citing Barberio, 121 Wn.2d at 50).

According to Lambert, this exception applies because he filed a motion

before resentencing to “Compel [the] State to State with Particularity the

Underlying Facts to Support an Aggravating Sentence” and the trial court denied

his motion. Lambert claims the court thereby exercised independent judgment to

decide the same issue on remand that he raises on appeal. Lambert’s motion,

however, sought to compel the State to identify facts supporting the jury’s findings

of aggravating factors and to provide the reasons why those facts justified an

4 No. 78621-1-I/5

exceptional sentence. This has nothing to do with Lambert’s arguments on appeal,

which challenge the adequacy of the charging document to apprise him of the

elements of the crimes of murder, kidnapping, burglary, and taking a motor vehicle

without permission. Furthermore, there is nothing in the record to suggest that the

court “considered and ruled” on the issue Lambert raised in his motion, and did not

simply deny it as untimely.

The trial court on remand did not address the issues to which Lambert now

assigns error. RAP 2.5(c)(1) does not apply. The alleged inadequacies of the

charging language are no longer reviewable on direct appeal, and we decline to

address them. See Hanson, 151 Wn.2d at 790 (“Once an appellate decision is

final, review as a matter of right is exhausted.”).

II. Restitution

Lambert claims the trial court erred by failing to conduct a hearing on

restitution within the 180 day statutory period. RCW 9.94A.753(1) requires the trial

court to set the amount of restitution at the sentencing hearing or within 180 days

of that hearing. Here, the court imposed restitution at the 2013 sentencing hearing

and then reduced the amount of restitution at the 2018 resentencing hearing.2

Although Lambert indicated before resentencing that he wished to be present for

an “evidentiary hearing” on restitution, he did not raise specific objections or

mention evidence he intended to present. When the court imposed restitution in

2013 and again at the 2018 resentencing, Lambert did not challenge the imposition

2 The 2018 judgment and sentence reduced Lambert’s restitution by $5,750, based on the removal of a crime victim’s compensation claim presumably related to the dismissed counts.

5 No. 78621-1-I/6

or amount of restitution and presented no evidence relevant to restitution. Lambert

fails to establish any error with respect to restitution.

III. Offender Score

In a similar vein, Lambert contends that he was deprived of the right to

challenge the State’s evidence supporting its calculation of his offender score. Not

so. The State filed and served a sentencing memorandum before the 2018

resentencing hearing and provided certified copies of the prior judgments and

sentences that were included in the offender score.3 Lambert requested an

“evidentiary hearing.” But, again, he raised no specific objection to the State’s

calculation or the sufficiency of its proof either before or during the resentencing

hearing. He did not contend that any prior convictions encompassed the same

criminal conduct. The court did not prevent Lambert from challenging his offender

score on any basis or from presenting any evidence with regard to the issue.

IV. Prior Convictions Affected by State v. Blake

While this appeal was pending, the Washington Supreme Court decided

Blake, and held that former RCW 69.50.4013(1) (2017), Washington’s felony drug

possession statute, violated the due process clauses of the state and federal

constitutions and was therefore void. 197 Wn.2d at 195. As Lambert agues, and

the State concedes, as a result of this decision, Lambert’s 2001 (Oregon) and 2002

(Washington) convictions of drug possession must be excluded from his offender

3The State acknowledges that it is unclear from the single-sided copy included in the clerk’s papers whether the copy of Lambert’s Lane County, Oregon judgment and sentence is certified. Nevertheless, as discussed infra, because that conviction must be excluded from Lambert’s offender score for other reasons, we need not address the sufficiency of the proof of the conviction.

6 No. 78621-1-I/7

score. See State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d

796 (1986) (prior conviction that is determined to be constitutionally invalid may

not be included in an offender score).

Lambert’s offender score was 12 for the most serious charge, murder in the

first degree.4 A reduction of two points would not affect the standard range for this

crime, or for any of Lambert’s other crimes. See RCW 9.94A.510 (sentencing grid

extends to an offender score of “9 or more”). Resentencing is not required where

the court miscalculates the standard range but “‘the record clearly indicates the

sentencing court would have imposed the same sentence anyway.’” State v.

Chambers, 176 Wn.2d 573, 589, 293 P.3d 1185 (2013) (quoting State v. Parker,

132 Wn.2d 182, 189, 937 P.2d 575 (1997)).

Here, a change in the law since Lambert was resentenced mandates a

reduction of his offender score, but the trial court nevertheless correctly calculated

the standard range. And, the sentencing court imposed a sentence above the

standard range based on the presence of aggravating factors. The court

determined that 80 years was an appropriate sentence due to the severity of

Lambert’s crimes of conviction, without regard to his offender score. The findings

of fact supporting the exceptional sentence expressly state that the seven

aggravating factors found by the jury, “taken together or considered individually,

constitute sufficient cause to impose the exceptional sentence. This court would

impose the same sentence if only one of the grounds [found by the jury] is valid.”

4Lambert’s offender scores for all six crimes ranged from 11 to 14, so after a reduction of two points, his standard range would remain nine or above for all crimes.

7 No. 78621-1-I/8

In view of the record, we are convinced that the court would impose the same

exceptional sentence notwithstanding a two point reduction in Lambert’s offender

score.5 Accordingly, we remand for correction of Lambert’s offender score.

V. Legal Basis for Exceptional Sentence

Lambert claims the sentencing court unlawfully imposed an exceptional

sentence based on the court’s own findings of future dangerousness and lack of

remorse, and not on findings made by the jury. See Blakely v. Washington, 542

U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (any fact that increases

the penalty above the standard range must also be found by a unanimous jury

beyond a reasonable doubt). But, the legal basis for the exceptional sentence is

clearly set forth in the court’s findings and conclusions, and does not include future

dangerousness or lack of remorse.

The sentencing court had discretion, upon the jury’s findings of multiple

aggravating factors, to impose a sentence up to the statutory maximum, so long

as the sentence is not “clearly excessive.” RCW 9.94A.537(6); RCW

9.94A.585(4). In fixing the duration of Lambert’s sentence, the court considered

the brutal and senseless nature of Lambert’s crimes, his obvious dangerousness,

and his refusal to accept responsibility for his acts. While none of these factors

constituted the legal basis for the exceptional sentence, they were relevant to the

court’s discretionary determination of the length of the sentence. The court did not

5Likewise, even if we assume that, in view of Lambert’s reduced offender score, the court would not find that the “Free Crimes Aggravator” under RCW 9.94A.535(2)(c) applies, we are confident the sentencing court would impose the same exceptional sentence because of its express finding that any one of the aggravating factors was sufficient to support the sentence.

8 No. 78621-1-I/9

violate Lambert’s right to a jury trial or impose an exceptional sentence on an

unlawful basis.

VI. Waiver of Counsel

Next, Lambert claims resentencing is required because he did not validly

waive his right to counsel on resentencing.

Criminal defendants have the right to self-representation under both the

state and federal constitutions. W ASH. CONST. art. I, § 22; Faretta v. California, 422

U.S. 806, 807, 955 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The right is not absolute

and the trial court must determine whether a defendant’s request for self-

representation is voluntary, knowing, and intelligent. State v. Madsen, 168 Wn.2d

496, 504, 229 P.3d 714 (2010). This court reviews decisions on a defendant’s

request for self-representation for an abuse of discretion. State v. Coley, 180

Wn.2d 543, 559, 326 P.3d 702 (2014). Waiver of counsel is an “‘ad hoc,’” fact

specific analysis best suited for trial courts. Id. (quoting State v. Hahn, 106 Wn.2d

885, 900-01, 726 P.2d 25 (1986)).

At the first hearing after this court issued its mandate, the State asked the

trial court to (1) set a hearing to resentence Lambert on the remaining counts

unaffected by this court’s decision on appeal, and (2) set an omnibus hearing and

tentative trial date for retrial on charges of murder and burglary. The State

indicated that Lambert had filed a motion before the mandate issued indicating his

intent to waive counsel, as he had in the initial 2013 proceeding.6 The court took

6 Lambert’s written motion does not appear to be included in the record on appeal.

9 No. 78621-1-I/10

up the motion and after conducting a thorough colloquy addressing the risks of

self-representation, found that Lambert’s waiver of counsel on remand was

voluntary, knowing, and intelligent.

Lambert now asserts that he sought only to represent himself at trial, but

not at resentencing. The record does not support his claim. Despite ample

opportunity to do so, Lambert did not place any limitations or parameters on his

request to represent himself. He declined to be screened for eligibility for court-

appointed counsel for any purpose. The record reflects that, when he waived his

right to counsel, Lambert understood that the remand proceedings would include

a certain and imminent resentencing hearing and potentially, a later retrial on two

charges. Later, when the resentencing was tentatively scheduled, Lambert

informed the court of his intent to move for a presentence investigation report and

seek a mitigated sentence due to mental illness. Having represented himself

throughout most of the first trial, Lambert demonstrated awareness of the

procedural posture. Lambert at no time prior to sentencing expressed to the trial

court that he had changed his mind and wanted counsel. The trial court had firm

and tenable grounds for allowing Lambert to represent himself for all purposes on

remand.

VII. Motion for Funding

Finally, Lambert challenges the trial court’s denial of a motion for funding.

Lambert does not elaborate on the nature of funding he requested but argues that

the court should have addressed the merits, instead of denying the motion on

procedural grounds. Lambert provides no citations to the record that correspond

10 No. 78621-1-I/11

to a motion for funding. Accordingly, Lambert, who has the burden of perfecting

the record, has not provided all of the evidence necessary to review this issue.

See RAP 9.2(b) (party must provide the portions of the verbatim proceeding

“necessary to present the issues raised on review.”); State v. Sisouvanh, 175

Wn.2d 607, 619, 290 P.3d 942 (2012) (appellate court may decline to address

issues where record is incomplete). In any event, it appears that the court denied

his motion because the case had not yet been remanded to the trial court. The

trial court’s authority to act is limited while appellate review is pending. See RAP

7.2(b) (enumerating issues trial court may address after appellate review has been

accepted). And, Lambert does not allege prejudice. The record indicates that he

was able to file subsequent requests and the court later ordered funding for some

expenses.

We remand for correction of Lambert’s offender score consistent with Blake,

but otherwise affirm his judgment and sentence.

WE CONCUR: