IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79092-7-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
WILLIAM MANESS BRYAN,
Respondent. FILED: March 11,2019
CHUN, J. — In April 2015, the trial court sentenced William Bryan to a
base sentence of 72 months w[th two 24-month school bus zone enhancements
to run consecutively to the base count and each other. Later that year, the
Supreme Court decided State v. Conover, 183 Wn.2d 706, 355 P.3d 1093
(2015), holding that such enhancements run consecutively to the base sentence
but concurrently with each other unless the court imposes an exceptional
sentence.
In 2017, Bryan, without a lawyer, filed a motion for the court to correct his
judgment and sentence pursuant to Conover. The trial court held a resentencing
in which it ran the enhancements concurrently, but raised Bryan’s base sentence
to 96 months such that his total sentence remained unchanged. Bryan appeals.
He claims the trial court exceeded its authority by raising his base sentence, and
he takes issue with the imposition of court costs and a DNA fee. We remand the No. 79092-7-1/2
judgment and sentence to strike the court costs and DNA collection fee, but
affirm the sentence in all other respects.
BACKGROUND Between October and November 2014, Cowlitz County officers used a
confidential informant to conduct three controlled buys of methamphetamine from
Bryan. Two of the controlled buys occurred within 1 ,000 feet of a school bus
stop.
On March 19, 2015, the State filed an amended information charging
Bryan with two counts of Delivery of a Controlled Substance with a School Bus
Stop Enhancement, one count of Delivery of a Controlled Substance, and one
count of Possession of a Controlled Substance with Intent to Deliver.
That same day, Bryan pleaded guilty to all the charges. The State
recommended a base sentence of 72 months with two 24-month enhancements
for a total of 120 months. Bryan requested a drug offender sentencing
alternative (DOSA) sentence. The court requested a presentence investigation
and continued the sentencing to April 23, 2015.
On April 23, 2015, the court followed the State’s recommendation and
sentenced Bryan to 72 months with two 24-month enhancements to run
consecutively to each other. The court additionally imposed a $100 DNA fee and
$350 in court costs.
On August 13, 2015, the Washington Supreme Court decided Conover,
which clarified that the statute providing for the school bus stop enhancements
2 No. 79092-7-113
(RCW 9.94A.533(6)) “requires the trial court to run [the defendant]’s bus stop
enhancements consecutively to the base sentences. . . but not consecutively to
each other.” 183 Wn.2d at 719. The enhancements may run consecutively to
each other only as part of an exceptional sentence. Conover, 183 Wn.2d at 713-
14.
A year and a half later, Bryan, acting without a lawyer, filed a Motion to
Clarify and/or Correct Judgment and Sentence on January 30, 2017. The motion
asked the court “to consider a concurrent sentence on the 2-two School Bus
Route Enhancement sentence’s [sic].” The motion further argued, “A remand for
re-sentencing is required because the sentence exceeds the Court’s statutory
authority.”
The court held a hearing on the motion on April 10, 2017. Bryan’s counsel
stated, “Mr. Bryan through me will be requesting that your Honor simply run
these sentences concurrent for a total sentence of 96 months. I do not believe
based on the case law that I provided that this warrants an entire resentencing.”
The State contended the court needed to conduct a full resentencing. When the
court noted Bryan had requested a resentencing in his motion, Bryan’s attorney
asserted “resentencing” was a term of art that Bryan used incorrectly and
reiterated the situation did not warrant a resentencing. The court decided to
conduct a resentencing.
3 No. 79092-7-1/4
On May 8, 2017, the court held the resentencing. The court stated that it
believed a 120-month sentence remained appropriate.1 As such, the court
increased Bryan’s base sentence to 96 months and ran the two 24-month
sentence enhancements concurrently. The court continued to impose a $100
DNA fee and $350 in court costs.
Bryan appeals.
ANALYSIS Bryan claims the trial court erred by resentencing him because his motion
only requested a ministerial correction of his judgment and sentence. The State
argues a resentencing was required to correct the facially invalid judgment. The
trial court did not err in its resentencing of Bryan.
‘A judgment and sentence is facially invalid if the trial court lacked
authority to impose the challenged sentence.” In re Snively, 180 Wn.2d 28, 32,
320 P.3d 1107 (2014). Erroneous sentences require a resentencing. Brooks v.
Rhay, 92 Wn.2d 876, 877, 602 P.2d 356 (1979).
1 Specifically, the court told Bryan: So when I look at your case and I remember when it was coming through the first time and I look at the documents again this time around and I gave you a sentence that I thought was appropriate at the time based on the history you had. You had an offender score of nine coming into this thing. So you’ve had at least nine opportunities to figure out the change, to do something different. And I don’t know how long he’s been in prison on those, but maybe this is what you need is [sic] some time to think about it. So the plea agreement was for 120 months. That’s what I intend to do. I thought it was appropriate, and the way I did it was the way I did it in order to get there, so I’m inclined to make the change for the 96 plus the 24. So that’s what I’ll do. So I’m not going to change the sentence essentially. It is what it is, and then we’ll just change the paperwork to match it.
4 No. 79092-7-1/5
In Conover, our Supreme Court decided the school bus stop enhancement
statute does not require trial courts to run enhancements on different counts
consecutively to each other. 183 Wn.2d at 708. Instead, when multiple offenses
carry such an enhancement, the court looks to RCW 9.94A.589(1)(a) to
determine how the enhancements should run. Conover, 183 Wn.2d at 708.
Under the statute, enhancements run concurrently unless the court imposes an
exceptional sentence. Conover, 183 Wn.2d at 716 n.5.
Here, at the first sentencing, the court did not impose an exceptional
sentence. Therefore, RCW 9.94A.589(1)(a) required the court to impose the two
school bus stop enhancements concurrently. Instead it imposed the
enhancements consecutively. This error required a resentencing. A
resentencing court maintains broad discretion to resentence on all counts. State
v. Toney, 149 Wn. App. 787, 792, 205 P.3d 944 (2009)
Bryan claims several unpublished opinions demonstrate that courts
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79092-7-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
WILLIAM MANESS BRYAN,
Respondent. FILED: March 11,2019
CHUN, J. — In April 2015, the trial court sentenced William Bryan to a
base sentence of 72 months w[th two 24-month school bus zone enhancements
to run consecutively to the base count and each other. Later that year, the
Supreme Court decided State v. Conover, 183 Wn.2d 706, 355 P.3d 1093
(2015), holding that such enhancements run consecutively to the base sentence
but concurrently with each other unless the court imposes an exceptional
sentence.
In 2017, Bryan, without a lawyer, filed a motion for the court to correct his
judgment and sentence pursuant to Conover. The trial court held a resentencing
in which it ran the enhancements concurrently, but raised Bryan’s base sentence
to 96 months such that his total sentence remained unchanged. Bryan appeals.
He claims the trial court exceeded its authority by raising his base sentence, and
he takes issue with the imposition of court costs and a DNA fee. We remand the No. 79092-7-1/2
judgment and sentence to strike the court costs and DNA collection fee, but
affirm the sentence in all other respects.
BACKGROUND Between October and November 2014, Cowlitz County officers used a
confidential informant to conduct three controlled buys of methamphetamine from
Bryan. Two of the controlled buys occurred within 1 ,000 feet of a school bus
stop.
On March 19, 2015, the State filed an amended information charging
Bryan with two counts of Delivery of a Controlled Substance with a School Bus
Stop Enhancement, one count of Delivery of a Controlled Substance, and one
count of Possession of a Controlled Substance with Intent to Deliver.
That same day, Bryan pleaded guilty to all the charges. The State
recommended a base sentence of 72 months with two 24-month enhancements
for a total of 120 months. Bryan requested a drug offender sentencing
alternative (DOSA) sentence. The court requested a presentence investigation
and continued the sentencing to April 23, 2015.
On April 23, 2015, the court followed the State’s recommendation and
sentenced Bryan to 72 months with two 24-month enhancements to run
consecutively to each other. The court additionally imposed a $100 DNA fee and
$350 in court costs.
On August 13, 2015, the Washington Supreme Court decided Conover,
which clarified that the statute providing for the school bus stop enhancements
2 No. 79092-7-113
(RCW 9.94A.533(6)) “requires the trial court to run [the defendant]’s bus stop
enhancements consecutively to the base sentences. . . but not consecutively to
each other.” 183 Wn.2d at 719. The enhancements may run consecutively to
each other only as part of an exceptional sentence. Conover, 183 Wn.2d at 713-
14.
A year and a half later, Bryan, acting without a lawyer, filed a Motion to
Clarify and/or Correct Judgment and Sentence on January 30, 2017. The motion
asked the court “to consider a concurrent sentence on the 2-two School Bus
Route Enhancement sentence’s [sic].” The motion further argued, “A remand for
re-sentencing is required because the sentence exceeds the Court’s statutory
authority.”
The court held a hearing on the motion on April 10, 2017. Bryan’s counsel
stated, “Mr. Bryan through me will be requesting that your Honor simply run
these sentences concurrent for a total sentence of 96 months. I do not believe
based on the case law that I provided that this warrants an entire resentencing.”
The State contended the court needed to conduct a full resentencing. When the
court noted Bryan had requested a resentencing in his motion, Bryan’s attorney
asserted “resentencing” was a term of art that Bryan used incorrectly and
reiterated the situation did not warrant a resentencing. The court decided to
conduct a resentencing.
3 No. 79092-7-1/4
On May 8, 2017, the court held the resentencing. The court stated that it
believed a 120-month sentence remained appropriate.1 As such, the court
increased Bryan’s base sentence to 96 months and ran the two 24-month
sentence enhancements concurrently. The court continued to impose a $100
DNA fee and $350 in court costs.
Bryan appeals.
ANALYSIS Bryan claims the trial court erred by resentencing him because his motion
only requested a ministerial correction of his judgment and sentence. The State
argues a resentencing was required to correct the facially invalid judgment. The
trial court did not err in its resentencing of Bryan.
‘A judgment and sentence is facially invalid if the trial court lacked
authority to impose the challenged sentence.” In re Snively, 180 Wn.2d 28, 32,
320 P.3d 1107 (2014). Erroneous sentences require a resentencing. Brooks v.
Rhay, 92 Wn.2d 876, 877, 602 P.2d 356 (1979).
1 Specifically, the court told Bryan: So when I look at your case and I remember when it was coming through the first time and I look at the documents again this time around and I gave you a sentence that I thought was appropriate at the time based on the history you had. You had an offender score of nine coming into this thing. So you’ve had at least nine opportunities to figure out the change, to do something different. And I don’t know how long he’s been in prison on those, but maybe this is what you need is [sic] some time to think about it. So the plea agreement was for 120 months. That’s what I intend to do. I thought it was appropriate, and the way I did it was the way I did it in order to get there, so I’m inclined to make the change for the 96 plus the 24. So that’s what I’ll do. So I’m not going to change the sentence essentially. It is what it is, and then we’ll just change the paperwork to match it.
4 No. 79092-7-1/5
In Conover, our Supreme Court decided the school bus stop enhancement
statute does not require trial courts to run enhancements on different counts
consecutively to each other. 183 Wn.2d at 708. Instead, when multiple offenses
carry such an enhancement, the court looks to RCW 9.94A.589(1)(a) to
determine how the enhancements should run. Conover, 183 Wn.2d at 708.
Under the statute, enhancements run concurrently unless the court imposes an
exceptional sentence. Conover, 183 Wn.2d at 716 n.5.
Here, at the first sentencing, the court did not impose an exceptional
sentence. Therefore, RCW 9.94A.589(1)(a) required the court to impose the two
school bus stop enhancements concurrently. Instead it imposed the
enhancements consecutively. This error required a resentencing. A
resentencing court maintains broad discretion to resentence on all counts. State
v. Toney, 149 Wn. App. 787, 792, 205 P.3d 944 (2009)
Bryan claims several unpublished opinions demonstrate that courts
correcting sentencing errors under Conover may correct only the imposition of
the consecutive enhancements. Bryan mischaracterizes these cases. Each of
these cases were remanded to the trial court for resentencing. See State v.
Roark, No. 46015-7-Il, slip op. at2 (Wash. Ct. App. Sept. 9,2015) (unpublished)
https://www.courts.wa.qov/orinions/pdf/D2%204601 5-7-
II%20%20Unpublished%200pinion.pdf (‘remand for resentencing with
instructions to the trial court to impose [defendant’s] multiple school zone
sentence enhancements consecutive to the base sentences for the drug and bail
jumping convictions, but concurrent to each other”); In re Pers. Restraint of Dunn,
5 No. 79092-7-1/6
No. 49891-0-Il, slip op. at 3 (Wash. Ct. App. Nov. 7, 2017) (unpublished)
http :Ilwww.courts.wa .qovIo~inions/rjdfID2%204989l -0-
li%20UnpubIished%20O~inion.~df (‘remand to the trial court for resentencing as
to the school bus route stop enhancements”); and State v. Hailer, No. 75040-2-I,
slip op. at 14 (Wash. Ct. App. Jun. 27, 2016) (unpublished)
http://www.courts.wa.cjov/opinions/pdf/750402.pdf (“remand for resentencing to
correct this error”). Even in Conover, it was clear that the remand was not
merely for the correction of a ministerial error, but for “resentencing with
instructions to use RCW 9.94A.589 to determine whether the multiple 24-month
sentence enhancements run concurrently or consecutively with each other.” 183
Wn.2d at 708. Contrary to Bryan’s argument, the fact that that a court remands
for resentencing with instructions does not limit the resentencing to the mere
correction of a ministerial error. Toney, 149 Wn. App. at 792 (stating the Court
“unequivocally” remanded for resentencing when the court included instructions
with the order to resentence).
Bryan further argues his motion restricted the court from reconsidering his
base sentence because he only asked for a correction to the enhancements.
Bryan cannot avoid resentencing and restrict the broad discretion of the court to
correct sentencing issues under Conover by limiting his motion to a correction of
a ministerial error. Even so, though he claims he intended to request only a
correction, Bryan moved for resentencing. See State v. Bebb, 108 Wn.2d 515,
524, 740 P.2d 829 (1987) (noting courts hold pro se litigants to the same
6 No. 79092-7-1/7
standards as attorneys). The trial court did not err by adjusting Bryan’s base
sentence during the resentencing.
Finally, Bryan argues the trial court erred by imposing discretionary fees,
including a $100 DNA fee and $350 in court costs. The State concedes that
because Bryan was indigent at the time of sentencing and his DNA has
previously been collection as a result of a prior felony conviction, these legal
financial obligations should be stricken. We accept the State’s concession.
We remand to strike the courts costs and DNA collection fee from the
judgment and sentence. And we affirm the sentence in all other respects.
WE CONCUR:
A. ______