State of Washington v. Joseph Andrew Richmond ( 2019 )

FILED
DECEMBER 17, 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. 36600-6-III
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JOSEPH ANDREW RICHMOND, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — In Joseph Richmond’s first appeal of his conviction
for murder in the second degree, this court remanded for the trial court to conduct an
offender score comparability analysis, and, if necessary, to exercise its discretion anew to
recalculate the length of Mr. Richmond’s confinement. State v. Richmond, 3 Wash. App.
2d 423, 437, 415 P.3d 1208, review denied, 191 Wash. 2d 1009, 424 P.3d 1223 (2018). In
this subsequent appeal from that remand, Mr. Richmond challenges two community
custody conditions and the imposition of interest on his legal financial obligations. For
the reasons stated below, we affirm in part, reverse in part, and remand for correction of
the judgment and sentence.
No. 36600-6-III
State v. Richmond
FACTS
At sentencing, the lower court originally was not going to impose a chemical
dependency evaluation and treatment, but changed its mind based on evidence presented
by the State. Although neither Mr. Richmond, nor his lawyer, expressed any objection to
this requirement, the court informed Mr. Richmond: “[I]f you disagree with that, that will
be one of the things that you can take up with the Court of Appeals.” Report of
Proceedings (RP) (Feb. 26, 2016) at 1211. The court also imposed other standard
conditions authorized by RCW 9.94A.703, including a requirement to pay supervision
fees.
The only aspect of his sentence that Mr. Richmond challenged in his prior appeal
was the comparability of an Idaho conviction used to calculate his offender score.
Agreeing that the record was insufficient to support that aspect of Mr. Richmond’s
sentence, we remanded “for resentencing on this issue.” Richmond, 3 Wash. App. 2d at
437. In the concluding paragraph of our opinion, we provided specific instructions that
our remand was limited “to conduct a comparability analysis and assessment of Mr.
Richmond’s offender score.” Id.
Upon remand, the State conceded the offender score issue. The parties then
presented arguments on what the new length of confinement should be. RP (Jan. 25,
2019) at 5-9. The court imposed a new confinement term based on those arguments and
reimposed the original community custody terms without exercising its discretion anew.
2
No. 36600-6-III
State v. Richmond
Id. at 10. Although not called on to do so by the parties, the lower court also afforded
Mr. Richmond partial financial relief under Ramirez.1 Id.
ANALYSIS
In this second appeal, Mr. Richmond argues that the lower court erred by ordering
him to obtain a chemical dependency evaluation and treatment as a condition of
community custody.
As previously noted, Mr. Richmond did not appeal this issue during his first
appeal. This was in spite of the fact that he had the opportunity to do so and in spite of
the fact that the lower court explicitly told him he could do so. Accordingly, review of
this issue is now barred. State v. Sauve, 100 Wash. 2d 84, 87, 666 P.2d 894 (1983).
As the Supreme Court explained in Sauve: “[A]t some point the appellate process
must stop. Where, as in this case, the issues could have been raised on the first appeal,
we hold they may not be raised in a second appeal.” Id. “Nonetheless, defendant is not
without a remedy. He may choose to apply for a personal restraint petition . . . .” Id.
More recently, in State v. Vandervort, No. 51973-9-II, slip op. at 1-2
(Wash. Ct. App. Nov. 26, 2019), http://www.courts.wa.gov/opinions/pdf/D2%2051973-
9-II%20Published%20Opinion.pdf., Division Two dismissed as untimely an appeal of
legal financial obligations. Although the superior court had recently amended the
1
State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018).
3
No. 36600-6-III
State v. Richmond
confinement portion of the defendant’s judgment and sentence as a sanction, Division
Two of this court held that amendment of the confinement portion of the judgment and
sentence did not renew the RAP 5.2 time frame for appealing other unaffected aspects of
the judgment and sentence. Accordingly, review of the chemical dependency condition is
not only barred as a matter of finality under Sauve, but also as untimely under RAP 5.2.
Mr. Richmond also challenges for the first time in this subsequent appeal the
lower court’s order for him to pay supervision fees as determined by the Department of
Corrections under RCW 9.94A.703(2)(d), and the imposition of interest on his
nonrestitution legal financial obligations. Because the Supreme Court had not decided
Ramirez at the time we issued our first opinion in this case, and because Mr. Richmond’s
sentence was not final at the time of Ramirez’s publication, he is entitled to his requested
relief as to these two issues. Ramirez, 191 Wash. 2d at 747-50; State v. Lundstrom, 6 Wn.
App. 2d 388, 396 n.3, 429 P.3d 1116 (2018). Accordingly, we accept the State’s
concession as to the legal financial obligations.
CONCLUSION
The judgment is affirmed, and the case is remanded for the lower court to finish
providing Mr. Richmond with financial relief under Ramirez.
4
No. 36600-6-111
State v. Richmond
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.
l4._t_<.,-. C'r. -
Lawrence-Berrey, C.J.
``( 1· C.. ~'
WE CONCUR:
Pennell, J.
5