IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 88034-9-I Respondent, DIVISION ONE v. PUBLISHED OPINION SHAMARR DERRICK PARKER,
Appellant.
BIRK, J. — We are asked whether Washington’s attenuation doctrine
permits the government to use information police learned from a witness, even
though an illegal search was a contributing cause to their learning the witness’s
identity and conversing with her for the first time. Police identified Shamarr Parker
as a suspect in an alleged rape, robbery, and kidnapping, and obtained a pen
register trap and trace (PRTT) order allowing them to use cell signals to locate his
phone. But they exceeded the scope of the PRTT order by additionally using a
cell site simulator (CSS) to confirm the precise location of Parker’s phone. Having
confirmed their proximity to Parker’s phone, police stopped the vehicle he occupied
as a passenger. During the stop, they encountered the driver of the vehicle, D.B.,
Parker’s girlfriend, who made statements to the police later that day and in the
weeks following that the State offered against Parker at trial. We conclude D.B.’s
cooperation with the police was an independent act of free will, beyond the
foreseeable results of using the CSS, making it a superseding cause of the No. 88034-9-I/2
discovery of her testimony, and making the testimony admissible. We further
conclude Parker was not entitled to resentencing under State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021). We affirm Parker’s conviction and sentence, and
remand to strike the community supervision fee.
I
A
We summarized the background facts of this case in an earlier appeal:
In December 2008, 17-year-old A.W. arrived home late and told her mother, Tracy Nephew, that a stranger had raped her at knifepoint. Nephew called 911. A.W. went to the hospital and a [sexual assault nurse examiner] examined her. Police identified Parker as a suspect based on A.W.’s recollection of the alleged attacker’s car and license plate number. Pierce County Superior Court issued an arrest warrant for Parker. Also, police obtained a search warrant to use a [PRTT] device to locate Parker. They also used a CSS, which they had not disclosed in their warrant application. Police found Parker at the home of [D.B.], an ex-girlfriend with whom Parker shared a child. When Parker left the residence with [D.B.], police followed them and arrested Parker in a parking lot. The State charged Parker with first degree kidnapping, first degree robbery, and first degree rape, all with a deadly weapon. A jury found Parker guilty of first degree kidnapping and first degree robbery both with a deadly weapon. The jury deadlocked on the rape charge.
State v. Parker, No. 82049-4-I, slip op. at 2-3 (Wash. Ct. App. May 24, 2021)
(unpublished) (footnote omitted), https://www.courts.wa.gov/opinions/pdf/
820494.pdf. We affirmed Parker’s convictions on direct appeal. Id. at 3. Later,
we granted a personal restraint petition, vacated Parker’s convictions, and
remanded for a new trial. In re Pers. Restraint of Parker, No. 45163-8-II, slip op.
at 1 (Wash. Ct. App. July 21, 2015) (unpublished), https://www.courts.wa.go v/
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opinions/pdf/D2%2045163-8-II%20%20Unpublished%20Opinion.pdf. By the time
of the second trial, Parker had discovered that the police had used a CSS to locate
him before his arrest, despite not mentioning its planned use in their warrant
application. Parker, No. 82049-4-I, slip op. at 3. Parker moved to suppress the
evidence discovered as a result of the search, including D.B.’s testimony, and the
trial court denied the motion. Id. At the second trial, the court admitted D.B.’s
testimony (read from the transcript of the first trial) that she saw Parker on the night
of the incident, and he told her that “he hit a lick,” which she described as “like a
robbery.” Parker told D.B. that “he got some girl for some weed,” and used a knife
to do it. D.B. testified that Parker was wearing a black jacket that night and washed
it approximately three times between that night and the day he was arrested. D.B.
gave the black jacket to detectives. The jury acquitted Parker of rape in the first
degree, but found Parker guilty of kidnapping and robbery in the first degree, both
with a deadly weapon. Id. at 4.
Parker appealed his convictions and argued the trial court should have
suppressed D.B.’s testimony as fruits of the illegal use of the CSS. Id. at 9-10. We
agreed that the police had improperly exceeded the scope of the PRTT order,
turning the focus to attenuation. Id. at 12-13. After trial, but before our decision,
the Supreme Court decided State v. Mayfield, 192 Wn.2d 871, 874-75, 434 P.3d
58 (2019), holding that attenuation may be found only when intervening
circumstances have genuinely severed the causal connection between official
misconduct and the discovery of evidence. In light of Mayfield, we remanded for
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the trial court to hold a suppression hearing on the issue of attenuation with respect
to the CSS and D.B.’s testimony. Parker, No. 82049-4-I, slip op. at 2, 13.
B
The following testimony was elicited at the suppression hearing on remand.
Retired Tacoma Police Detective Bradley Graham testified that he believed Parker
to be a suspect in the rape, robbery, and kidnapping of A.W., but did not know
where Parker was located. Graham contacted Parker’s family members and
learned that Parker had a girlfriend with whom he had been staying. Retired
Tacoma Police Detective Terry Krause testified that he obtained a PRTT order and
geolocate order to find Parker’s phone. With the order, Parker’s phone company
sent officers geolocation “pings” every 15 minutes. Krause testified that on
January 6, 2009, he “got a specific ping back and asked Detective Graham if there
was anybody related to the case in the area of that ping, and [Detective Graham]
knew of a house.”
Detective Jennifer Quilio testified that on January 6, 2009, she received a
call from a sergeant providing her with an address that might have been associated
with Parker. Detective Quilio researched the address and learned that D.B. lived
there. Another detective advised Detective Quilio that he had a recent case
assignment involving D.B. at that address, and the father of D.B.’s youngest child
was most likely Parker. Krause went to the provided address with the CSS to verify
that Parker’s phone was there. Krause testified that “[w]e got in the area, set up
the equipment, and then drove by to see what would happen, and we captured the
phone so we were able to direction find and put it right in the house.”
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While undercover officers were watching the house, a vehicle left with two
occupants. In Detective Quilio’s report of the incident, which was admitted at the
hearing, she wrote that officers “saw a grey Suburban arrive at the house and the
sole occupant, a female, got out and went inside. While they waited the same
female came out and got back into the Suburban with a passenger.” The report
noted “that it appeared the passenger was a male with braids, which matche[d]
Parker’s description.” Krause again used the CSS to confirm that the phone was
in the vehicle. Officers stopped the vehicle, detained the passengers, and
identified them as Parker and D.B. D.B. told officers she had a gun in the vehicle .
An officer took the gun for “safekeeping” and gave the gun to Officer Quilio.
Detective Quilio introduced herself to D.B. and arranged to meet at D.B.’s
house to speak. Officer Quilio told D.B. that she had possession of the gun, and
would return it to D.B. at the end of their conversation. Detective Quilio testified
that she could not remember what D.B.’s response to her retaining possession of
the gun was, but noted that “there wasn’t any further discussion about it.” Detective
Quilio testified that she kept the gun for officer safety, as it was not “very safe to
let somebody leave with a weapon when you’ve already arranged to meet them
secondary to that.”
Detective Quilio testified that she did not tell D.B. that she was required to
speak to the officers and that if D.B. had declined to speak with her, she could not
have forced her to speak. Detective Quilio told D.B. that they were looking for a
specific jacket that had been described by A.W., and D.B. provided a black
zippered coat that “had been a topic of discussion between” D.B. and Parker.
5 No. 88034-9-I/6
Detective Quilio testified that D.B. did not provide any information about the
incident with A.W. and instead wanted to speak about her daughter. This was
because after police told D.B. the crimes they suspected Parker had committed,
D.B. became concerned Parker could have sexually abused her children.
Following this conversation at the house on January 6, 2009, Detective
Quilio and D.B. had numerous phone conversations, with D.B. trying to schedule
a forensic interview for her daughter. On January 22, 2009, Detective Quilio and
D.B. spoke on the phone, and D.B. volunteered that she had been withholding
information about the incident involving A.W. D.B. initiated this part of the
conversation on her own. D.B. told Detective Quilio that she knew who A.W. was
because of Parker’s phone, and D.B. had a conversation with Parker about “how
this had been some sort of [cannabis] transaction that hadn’t gone well.” D.B. said
that Parker had come to her house on December 19, 2008, and told D.B. that he
had stolen cannabis from a girl, whom D.B. identified as A.W., and used a knife to
threaten her. Detective Quilio testified that D.B. volunteered this information and
stated that she was coming forward with the information because she had received
threatening phone calls from Parker’s family and friends following his arrest.
Detective Quilio characterized her contact with D.B. as “coming from [D.B.]. She
was the one insisting and pursuing that contact from that initial meeting on the 6th
of January through the forensic interview.”
The trial court concluded that D.B.’s “own independent free will severed the
causal chain between police use of the CSS prior to Parker’s arrest and the
6 No. 88034-9-I/7
information she later provided to police of her own volition.” The trial court denied
Parker’s motion to suppress D.B.’s testimony.
C
Also on remand, Parker filed a CrR 7.8 motion for relief from judgment
pursuant to Blake. At Parker’s 2018 sentencing, the trial court calculated Parker’s
offender score as 12, which included one count of conspiracy to possess a
controlled substance. His offender score made the standard range for kidnapping
149 months to 198 months, and the standard range for robbery 129 months to 171
months. The court sentenced Parker to the high end of the range for each count
and added a consecutive 24-month deadly weapon enhancement to each count,
for a total of 246 months’ confinement. In his CrR 7.8 motion, Parker argued
resentencing was warranted because his 2018 sentence included reference to a
Blake offense. The State conceded that Parker’s 2018 judgment and sentence
included a Blake conviction, but contended that Parker was not entitled to
resentencing because, with his offender score still above 9, his standard
sentencing range would be unaffected.
The court agreed that that the reduction of Parker’s offender score by one
point would not affect the outcome of the sentence. The 2022-2023 remand
proceedings, including Parker’s 2023 CrR 7.8 motion, were heard before the same
judge who had sentenced Parker in 2018. Although the judge noted he had
referenced Parker’s criminal history as one of the factors he had considered at
sentencing, the judge stated that “possession of drugs had nothing to do with the
7 No. 88034-9-I/8
sentence whatsoever” and it had “to do with the violent conduct.”1 The trial court
ruled that Parker was not eligible to have a corrected judgment or adjusted
sentence because “his sentence would not change as a result of any Blake relief
granted by the court in this and/or other Pierce County cases and/or the removal
from consideration of Blake-affected convictions from other jurisdictions.”
Parker appeals.
II
Parker argues D.B.’s testimony should have been suppressed because the
State failed to satisfy the attenuation doctrine as set forth in Mayfield. We disagree.
Parker assigns error to three findings of fact from the suppression hearing.
When reviewing a trial court’s denial of a motion to suppress, we review whether
substantial evidence supports the challenged findings of fact and if so, whether the
findings support the conclusions of law. State v. Ward, 182 Wn. App. 574, 587,
330 P.3d 203 (2014). We accept unchallenged findings of fact as true. State v.
Luther, 157 Wn.2d 63, 77-78, 134 P.3d 205 (2006).
Parker assigns error to finding of fact 7, which states, “On January 6, 2009,
police observed Parker and [D.B.] leave her residence, and get in a vehicle and
drive away. Police again used the CSS to confirm that Parker was in the vehicle.
1 In response to the judge’s statement, Parker’s counsel interjected that the
2018 jury had acquitted Parker of rape. To the extent Parker’s counsel meant to suggest there was not “violent conduct” before the court, that was inaccurate. Parker’s criminal history included conviction for three counts of assault in the second degree, and the current offenses at sentencing included the jury’s conviction for kidnapping and robbery at knife-point of A.W.
8 No. 88034-9-I/9
Police stopped the vehicle [D.B.] was driving and arrested Parker.” At the
suppression hearing, Detective Quilio testified that on January 6, 2009, officers
observed two individuals exit D.B.’s residence, enter a vehicle, and leave. Officers
subsequently stopped the vehicle, detained the occupants, and identified them as
Parker and D.B. Detective Quilio testified that D.B. was driving the vehicle and
Parker was the passenger. Krause testified that he used the CSS to confirm that
the phone was in the vehicle that drove away from the address before officers
made an arrest. We agree with Parker that in stating police observed Parker
leaving the residence, the finding potentially goes somewhat farther than the
evidence, which described only a male matching Parker’s description. However,
we do not read the finding as stating that the police had identified Parker as the
passenger of the vehicle before his arrest. Instead, the finding states that two
individuals were seen leaving D.B.’s residence, and the individuals were later
determined to be D.B. and Parker. Substantial evidence supports finding of fact
7.
Parker assigns error to findings of fact 16 and 17, which state,
16. In the weeks following January 6, 2009, [D.B.] had several discussions with Detective Quilio. These conversations solely pertained to [D.B.’s] concerns that Parker had sexually abused [her daughter.] Detective Quilio communicated with [D.B.] in regard to these concerns. [D.B.] pressed the issue of wanting further investigation into the issue of whether Parker had possibly molested [her daughter.]
17. During the conversations in the weeks following January 6, 2009, Detective Quilio did not ask [D.B.] any questions about the investigation involving A.W. Detective Quilio had no reason to believe [D.B.] had any additional information about Parker’s crimes against A.W. She did not plan to speak with
9 No. 88034-9-I/10
[D.B.] further about that investigation. During these conversations, [D.B.] did not make any statements about Parker’s crimes against A.W.
Detective Quilio testified that she had multiple contacts with D.B. after January 6,
2009, the focus of D.B.’s attention during those conversations was about her
daughter and attempting to obtain a forensic interview, and Detective Quilio was
not trying to reach D.B. to interview her about the incident with A.W. Detective
Quilio testified she “wouldn’t have known that [D.B.] was withholding information
until she provided it on the 22nd, so there wasn’t additional questioning.”
Unchallenged finding of fact 18 states that Detective Quilio spoke with D.B. after
January 6, 2009 “because she was doing her job in following up regarding a
complaint of possible sexual abuse. This was the sole reason Detective Quilio
was maintaining contact with [D.B.] during this time period,” and the detective “did
not maintain contact with [D.B.] out of any interest related to the investigation
involving Parker’s crimes against A.W.” The challenge to these findings focuses
on whether the intervening discussions broached solely the topic of D.B.’s
concerns for her daughter to the exclusion of the crimes against A.W. While
Detective Quilio did not state in so many words that the intervening conversations
never strayed from the one topic to the other, it is nevertheless a reasonable
inference from Detective Quilio’s statements that that was substantially the case.
Substantial evidence supports findings of fact 16 and 17.
Parker assigns error to all the trial court’s conclusions of law that the State
was entitled to use D.B.’s statements under Washington’s attenuation doctrine.
10 No. 88034-9-I/11
We review conclusions of law relating to the suppression of evidence de novo.
State v. Betancourth, 190 Wn.2d 357, 363, 413 P.3d 566 (2018).
Individuals enjoy a fundamental right under both the federal and state
constitutions to be free from unlawful searches and seizures. See U.S. CONST.
amend. IV; WASH. CONST. art. I, § 7. Article I, section 7 of the Washington
Constitution states, “No person shall be disturbed in [their] private affairs . . .
without authority of law.” As a general rule, we exclude from court proceedings
any evidence obtained in violation of these rights. See State v. McGee, 3 Wn.3d
855, 865, 557 P.3d 688 (2024). The exclusionary rule extends to “verbal evidence”
derived “immediately from an unlawful entry and an unauthorized arrest.” Wong
Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The attenuation doctrine operates as an exception to the exclusionary rule.
McGee, 3 Wn.3d at 866. Washington has long recognized that article I, section 7
“is more protective of individual privacy than the Fourth Amendment to the United
States Constitution.” Id. at 865. To come within Washington’s attenuation
doctrine, the State must prove “that intervening circumstances gave rise to a
superseding cause that genuinely severed the causal connection between official
misconduct and the discovery of evidence.” Mayfield, 192 Wn.2d at 883.
Both Mayfield and Wong Sun applied the exclusionary rule to evidentiary
discoveries ostensibly offered by a witness (in each case the defendant), that were
not attenuated from police misconduct. In Mayfield, the arresting officer unlawfully
seized the defendant. Id. at 876-77. While seized, the defendant consented to a
pat-down search, during which the officer found a large amount of cash that the
11 No. 88034-9-I/12
officer suspected resulted from drug transactions. Id. at 876. The officer obtained
consent to search the defendant’s vehicle, where he found methamphetamine. Id.
The Supreme Court held the defendant’s consent “was the direct, foreseeable
result of” the illegal seizure because “consent to search during an ongoing unlawful
seizure, even if preceded by Ferrier[2] warnings, is entirely foreseeable and not an
independent act of free will” sufficient to establish a superseding cause and satisfy
Washington’s narrow attenuation doctrine. Id. at 900-01. The court concluded
that giving consent to search during an unlawful seizure is “very different from
independently volunteering to be searched,” and Mayfield “had no time to reflect
on his options and was not free to leave.” Id. at 900.
In Wong Sun, six or seven police officers broke down the front door of one
of the defendants, Toy, followed Toy into the bedroom where his family was
sleeping, and “almost immediately” handcuffed and arrested him. 371 U.S. at 486.
Officers confronted Toy with evidence that he had been selling drugs, and Toy
provided information incriminating himself and others. Id. at 474-75. The United
States Supreme Court held that Toy’s declarations were inadmissible because “it
is unreasonable to infer that Toy’s response was sufficiently an act of free will to
purge the primary taint of the unlawful invasion.” Id. at 486.
But the attenuation doctrine permits the use of evidence discovered after
an illegal search that came to light because of a new event—which “may take the
form of an independent act of free will by someone other than law enforcement,
including by the defendant.” McGee, 3 Wn.3d at 868. In Wong Sun, the co-
2 State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
12 No. 88034-9-I/13
defendant, Wong Sun, was arrested without probable cause in violation of the
Fourth Amendment. 371 U.S. at 491. Then he was “released on his own
recognizance after a lawful arraignment, and had returned voluntarily several days
later” to make a confession. Id. In concluding that the confession was admissible,
the court recognized that not all evidence “is ‘fruit of the poisonous tree’ simply
because it would not have come to light but for the illegal actions of the police.” Id.
at 487-88. Instead of applying a strict “but for” causation standard, the question
was whether the evidence was obtained “ ‘by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.’ ” Id.
(quoting JOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT: RESTRICTIONS UPON ITS
D ISCOVERY OR COMPULSORY DISCLOSURE 221 (1959)). Mayfield cited Wong Sun as
exemplifying the appropriately “narrow exception” to the exclusionary rule, and as
consistent with Washington state constitutional law. 192 Wn.2d at 893, 897-98.
Most recently, in McGee, the Supreme Court favorably cited State v.
Childress, 35 Wn. App. 314, 666 P.2d 941 (1983), and People v. McInnis, 6 Cal.
3d 821, 494 P.2d 690, 100 Cal. Rptr. 618 (1972), as cases where an independent
act of free will satisfied the attenuation doctrine. 3 Wn.3d at 868, 872-73. In
Childress, police in California conducted an illegal search and discovered the
defendant’s Washington driver’s license, a bank check showing an Everett
address, and a photograph of two nude girls. 35 Wn. App. at 315. California
officers forwarded the information to Everett police, who canvassed the
neighborhood and located the parents of one of the girls in the photograph. Id.
The parents made a general, nonsuggestive inquiry of their daughter, who
13 No. 88034-9-I/14
disclosed sexual involvement with the defendant. Id. at 315-16. The court looked
to factors the United States Supreme Court had identified as particularly relevant
when applying the exclusionary rule to witness testimony: (1) the length of the
“road” between the unlawful police conduct and the witness’s testimony, (2) the
degree of free will the witness exercised, and (3) whether exclusion would
permanently disable the witness from testifying about relevant and material facts,
even though the testimony might be unrelated to the original illegal search’s
purpose or the evidence discovered during it. Id. at 316 (citing United States v.
Ceccolini, 435 U.S. 268, 275-77, 98 S. Ct. 1054, 1060, 55 L. Ed. 2d 268 (1978)).
Under the attenuation doctrine, the daughter’s new, voluntary disclosure was the
cause of the new discovery of her testimony. Id. at 317.
In McInnis, police identified the defendant as the perpetrator of a liquor store
robbery by showing a witness a booking photo of the defendant from an illegal
detention a month prior. 6 Cal. 3d at 823-24. The court admitted the witness’s
identification and the California Supreme Court affirmed, explaining that “[t]o hold
that all such pictures resulting from illegal arrests are inadmissible forever . . .
would not merely permit the criminal ‘to go free because the constable has
blundered’ but would . . . in effect be giving [the defendant] a crime insurance
policy.” Id. at 826 (citation omitted) (quoting People v. Defore, 242 N.Y. 13, 21,
150 N.E. 585 (1926)). Our Supreme Court cited McInnis as consistent with the
exclusionary rule under article I, section 7 because “[w]hile the photograph would
14 No. 88034-9-I/15
not be admissible, the witness’s identification could be considered an independent
act of free will and thus admissible.” McGee, 3 Wn.3d at 873.3
Parker argues that Childress is no longer viable because it relied on
Ceccolini, a Fourth Amendment case, and so potentially a standard that is less
protective of privacy than Mayfield. Mayfield defines the attenuation doctrine as it
was originally conceived to depend on a superseding cause. 192 Wn.2d at 883.
Childress cited Ceccolini’s discussion of the special considerations when applying
the exclusionary rule to witness testimony. 35 Wn. App. at 316. We do not read
Childress as also endorsing Ceccolini’s reliance on the principle of deterring official
misconduct underlying the exclusionary rule of the Fourth Amendment, see 435
U.S. at 279-80, which would be incompatible with article I, section 7. In finding
attenuation, Childress rested on the witness’s independent act of free will to make
incriminating statements to her parents. The reasoning and outcome of Childress
remain consistent with the Washington Supreme Court’s decisions in both Mayfield
and McGee.
The cases cited above suppressed testimonial evidence that police gained
during the illegal entry and arrest of defendant Toy in Wong Sun, and evidence
3 Other Washington courts have concluded that the testimony of a witness
discovered through a constitutional violation was not subject to suppression. See State v. Russell, 125 Wn.2d 24, 57 n.9, 882 P.2d 747 (1994) (noting that “courts are more reluctant to exclude the testimony of other witnesses than they are physical evidence”); State v. Stone, 56 Wn. App. 153, 161-62, 782 P.2d 1093 (1989) (witness’s testimony was sufficiently attenuated from police misconduct where she went to the sheriff’s office voluntarily, affirmatively assisted officers in locating houses the defendant had burglarized, and “exercised her own free will both in her statements to police and in her testimony at trial”); State v. West, 49 Wn. App. 166, 168-71, 741 P.2d 563 (1987) (attenuation found where the witnesses’ statements were “freely and voluntarily given”).
15 No. 88034-9-I/16
they gained during and immediately because of an illegal seizure as in Mayfield.
But the case law has distinguished evidence gained from a voluntary disclosure by
the witness, including by the defendant, that is remote in impetus from police
misconduct, as with defendant Wong Sun in that case, Childress, and McInnis.
This is consistent with “Mayfield’s language analogizing to tort law.” McGee, 3
Wn.3d at 869. In this court’s opinion in McGee, we explained that “[t]he ‘theoretical
underpinning of an intervening cause which is sufficient to break the original chain
of causation [i.e., constitute a superseding cause] is the absence of its
foreseeability.’ ” State v. McGee, 26 Wn. App. 2d 849, 858, 530 P.3d 211 (2023)
(some alterations in original) (quoting Campbell v. ITE Imperial Corp., 107 Wn.2d
807, 813, 733 P.2d 969 (1987)), aff’d, 3 Wn.3d 855, 557 P.3d 688 (2024). This
inquiry considers whether “ ‘the likelihood’ ” of the intervening act is “ ‘one of the
hazards which makes the [defendant] negligent.’ ” Id. (alteration in original)
(quoting Albertson v. State, 191 Wn. App. 284, 297, 361 P.3d 808 (2015)). The
nonexclusive factors courts have used in addressing superseding cause in tort
cases include whether the intervening act “ ‘created a different type of harm than
otherwise would have resulted from the actor’s negligence.’ ” Id. at 858 n.4
(quoting Campbell, 107 Wn.2d at 812-13). In requiring a superseding cause in the
article I, section 7 context, the court demands an intervening circumstance bringing
about a discovery beyond the foreseeable results of the police misconduct itself.
Here, that misconduct was using the CSS to gain a precise location for
Parker’s phone, going beyond the PRTT order, without having informed the
magistrate that that technology would be used and obtaining authorization. D.B.’s
16 No. 88034-9-I/17
volunteering subsequent statements to law enforcement, later that day at her
home, and weeks later, at her own election to share her testimony, are intervening
circumstances going beyond the foreseeable results of the police using the CSS
without permission to locate Parker’s phone. Unlike in Mayfield, D.B. was not the
defendant, nor a suspect, and was both free to reflect on her options and free to
leave the scene after the initial stop.4 D.B. agreed to speak with officers at a
separate location and after time had passed from the stop. The period of time was
even longer between the first interview on January 6 and the subsequent interview
on January 22 when D.B. provided most of the incriminating information about
Parker and A.W. Like in Childress, where a third party’s voluntary disclosure to
officers was the superseding cause between the initial police misconduct and the
challenged testimony, D.B.’s voluntary disclosure was the superseding cause of
the discovery of her testimony. The trial court did not err in concluding that D.B.’s
testimony was attenuated from the police misconduct and was admissible.
III
Parker argues he is entitled to resentencing because his sentence was
imposed using an offender score that included a conviction invalid under Blake.
Because Parker’s standard sentencing range does not change and we can discern
from the record that his sentence would not change, we disagree.
4 Parker suggests that Detective Quilio’s possession of D.B.’s gun coerced
D.B. to cooperate in the investigation. This argument is not supported by testimony in the suppression hearing.
17 No. 88034-9-I/18
As an initial matter, the parties dispute whether this issue is before the court
on direct review or as a collateral attack.5 “ ‘[A] new rule for the conduct of criminal
prosecutions is to be applied . . . to all cases, state or federal, pending on direct
review or not yet final.’ ” State v. Wences, 189 Wn.2d 675, 677, 406 P.3d 267
(2017) (second alteration in original) (quoting In re Pers. Restraint of St. Pierre,
118 Wn.2d 321, 326, 823 P.2d 492 (1992)). “ ‘Final’ ” means “ ‘a case in which a
judgment of conviction has been rendered, the availability of appeal exhausted,
and the time for a petition for certiorari elapsed or a petition for certiorari finally
denied.’ ” St. Pierre, 118 Wn.2d at 327 (quoting Griffith v. Kentucky, 479 U.S. 314,
321 n.6, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)). Additionally, “a final judgment
‘ends the litigation, leaving nothing for the court to do but execute the judgment.’ ”
State v. Taylor, 150 Wn.2d 599, 601, 80 P.3d 605 (2003) (internal quotation marks
omitted) (quoting In re Det. of Petersen, 138 Wn.2d 70, 88, 980 P.2d 1204 (1999)).
A conviction is “final” for personal restraint petition time-bar purposes only if both
the conviction and the sentence are final. In re Pers. Restraint of Skylstad 160
Wn.2d 944, 953-54, 162 P.3d 413 (2007).
Under State v. Kilgore, finality occurs when “the ‘availability of appeal’ [has]
been exhausted.” 167 Wn.2d 28, 43, 216 P.3d 393 (2009) (emphasis omitted)
5 The State also argues that Parker did not timely appeal the order denying
the Blake resentencing in violation of RAP 2.5 and 5.3. In his notice of appeal, Parker sought review of “the denial of post-appeal 3.6 motion, judgment and sentence rendered against him on the 27th day of January 2023.” The order denying relief pursuant to Blake was filed on January 27, 2023. Additionally, the order denying relief pursuant to Blake was attached to Parker’s notice of appeal, and both were filed on the same day. We conclude Parker has adequately designated the order in his notice of appeal.
18 No. 88034-9-I/19
(quoting St. Pierre, 118 Wn.2d at 327). “[A] case has no remaining appealable
issues”—for instance—“where an appellate court issues a mandate reversing one
or more counts and affirming the remaining count, and where the trial court
exercises no discretion on remand as to the remaining final count.” Id. at 37. In
Kilgore, the court noted that “[a]lthough the trial court had discretion . . . to revisit
Kilgore’s exceptional sentence on the remaining five convictions, it made clear that
. . . it was not reconsidering the exceptional sentence imposed on each of the
remaining counts.” Id. at 41. Thus, because the trial court chose not to exercise
its discretion on remand, finality occurred when the Supreme Court issued its
mandate terminating Kilgore’s right to appeal in state court. Id. at 44. In contrast,
in State v. Brown, where the trial court did exercise discretion on remand to
determine whether an exceptional sentence was appropriate, the issue was not
final for purposes of reviewability. 193 Wn.2d 280, 287, 440 P.3d 962 (2019).
Here, this court remanded for the trial court to conduct a suppression
hearing to determine whether D.B.’s testimony was attenuated from police
misconduct and whether Parker’s convictions stood. Parker, No. 82049-4-I, slip
op. at 2, 17. The trial court exercised its discretion in deciding the suppression
hearing, appealable issues remained, and Parker’s convictions were not final.
Because Parker’s convictions were not final, Blake applies on direct review.
Blake held that Washington’s strict liability drug possession statute, RCW
69.50.4013(1), violates state and federal due process clauses and therefore is
void. 197 Wn.2d at 195. A conviction based on an unconstitutional statute cannot
be considered in calculating an offender score. See State v. Ammons, 105 Wn.2d
19 No. 88034-9-I/20
175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986). Thus, Parker’s offender score
in his 2018 judgment and sentence was incorrect.
“When the sentencing court incorrectly calculates the standard range . . .
remand is the remedy unless the record clearly indicates the sentencing court
would have imposed the same sentence anyway.” State v. Parker, 132 Wn.2d
182, 189, 937 P.2d 575 (1997). This court has held that where the standard
sentence range is the same after recalculation of the offender score, a calculation
error may be harmless. State v. Priest, 147 Wn. App. 662, 673, 196 P.3d 763
(2008). However, even if the sentencing range is the same, the error is not
harmless if the “record does not clearly indicate that the sentencing court would
have imposed the same sentence” without the erroneous offender score. State v.
McCorkle, 88 Wn. App. 485, 499-500, 945 P.2d 736 (1997), aff’d, 137 Wn.2d 490,
973 P.2d 461 (1999).
Here, Parker’s miscalculated offender score was 12. Without the Blake
conviction, Parker’s offender score would still be above 9. Once a defendant’s
offender score reaches 9 and above, the standard range sentence remains the
same. State v. Kelly, 4 Wn.3d 170, 183 n.9, 561 P.3d 246 (2024). In ruling on
Parker’s CrR 7.8 motion, the trial court stated that “the reduction of the score by
one point because of prior drug possession/conviction doesn’t affect the outcome
of the sentence at all,” and “I can tell you as a sentencing judge, [the sentence]
would not have been any different at all. [The prior drug conviction] had nothing
to do with it.” Because it is clear from the record that the trial court would have
20 No. 88034-9-I/21
imposed the same sentence even without the offender score error, Parker is not
entitled to resentencing.6
IV
Parker argues we should strike the victim penalty assessment fee.
However, on November 16, 2023, the trial court waived Parker’s legal financial
obligations that were not restitution, including the victim penalty assessment fee.
Thus, this claim is moot. In re Det. of J.S., 138 Wn. App. 882, 889, 159 P.3d 435
(2007) (“An issue is moot when a court can no longer provide meaningful relief.”).
Parker further argues that we should strike the community custody condition
requiring that he pay his supervision costs. The State does not object to striking
the community supervision fee. We accept the State’s concession and remand for
the trial court to strike imposition of the community custody supervision fee as a
ministerial matter. We otherwise affirm.
WE CONCUR:
6 Because we conclude that Parker is not entitled to resentencing, we do not address Parker’s argument that remand should occur before a different judge.