State Of Washington v. James Arthur Battle, Jr. ( 2013 )

COURT Or Ai'PcAL'o Ul'.
STATE OF WASHINGTON
2013 JUN 17 AM S^ 30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68250-4-1
Respondent, DIVISION ONE
v.
JAMES ARTHUR BATTLE, UNPUBLISHED
Appellant. FILED: June 17. 2013
COX, J. - James Battle appeals an order correcting the sentence he
received for delivery of cocaine. He contends the court's upward correction of
the statutory maximum violated double jeopardy principles. Because we adhere
to our decision in In re Personal Restraint of Hopkins,1 and because Battle had
no legitimate expectation of finality in his sentence after he collaterally attacked
it, we reject his double jeopardy claim. Battle's pro se arguments are beyond the
scope of the superior court's decision and the scope of our review. Accordingly,
we affirm.
In 2007, a jury convicted Battle of delivery of cocaine. The court
sentenced him to 114 months confinement and 9 to 12 months of community
custody. The judgment and sentence listed the maximum term for the offense as
10 years. Battle appealed and this court affirmed.
189 Wash. App. 198, 200-03, 948 P.2d 394 (1997).
No. 68250-4-1/2
Battle subsequently filed several personal restraint petitions challenging
his conviction and sentence. In his most recent petition, Battle argued that the
combined term of 114 months and 9 to 12 months of community custody
exceeded the 10-year statutory maximum stated on his judgment and sentence.
The State pointed out that under RCW 69.50.408, Battle's prior drug offenses
doubled the statutory maximum to 20 years. The State therefore asked this court
to remand to correct the judgment and sentence. The Acting Chief Judge agreed
that Battle's prior offenses "automatically doubled the statutory maximum term for
the current offense as a matter of law" but dismissed the petition because he had
not shown that his sentence will exceed even the undoubted 10-year statutory
maximum.
Battle sought discretionary review in the Washington Supreme Court. The
Supreme Court Commissioner concluded the judgment and sentence contained
a facial error because it imposed "a total term of confinement and community
custody that potentially exceeds the stated maximum sentence." But the
Commissioner rejected Battle's argument that he was entitled to a reduction of
his sentence to comport with the 10-year maximum stated on the judgment and
sentence:
[Battle] urges that the doubling called for by RCW 69.50.408 is
discretionary, and that here the superior court exercised its discretion
against doubling. This argument is clearly meritless. The superior court
retains its discretion to set a term within the standard range (which is not
doubled), but the absolute maximum sentence that the court may impose
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No. 68250-4-1/3
is automatically doubled. In other words, the statute creates a new
statutory maximum.121
The Commissioner denied the motion for discretionary review "on the condition
that within 60 days of this ruling the State obtain and file in this court an amended
judgment and sentence stating the correct maximum sentence." Battle moved to
modify the Commissioner's ruling and a Department of the Supreme Court
denied his motion.
The State then obtained an order from the superior court amending
Battle's judgment and sentence to reflect a statutory maximum term of 20 years.
Battle appeals that order.
DOUBLE JEOPARDY
Battle contends the upward correction of his statutory maximum violated
double jeopardy principles. We review alleged double jeopardy violations de
novo.3
The double jeopardy clauses of our state and federal constitutions prohibit
multiple punishments for the same offense.4 Resentencing to increase an
erroneous sentence generally does not violate this prohibition,5 but resentencing
to increase a correct sentence does.6 Battle contends the maximum sentence
listed in his original sentence was correct and could not be increased without
violating double jeopardy. He acknowledges that his maximum sentence could
2Brief of Respondent at 4-5.
3State v. Jackman. 156 Wash. 2d 736, 746, 132 P.3d 136(2006).
4 State v. Mutch. 171 Wash. 2d 646, 661, 254 P.3d 803, 814 (2011).
5 Id at 666.
6 State v. Hardestv, 129 Wash. 2d 303, 310, 915 P.2d 1080 (1996).
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No. 68250-4-1/4
be doubled under RCW 69.50.408, but contends such doubling was
discretionary, not mandatory. Therefore, he concludes that his original sentence
was not erroneous and its correction violated double jeopardy. We disagree.
Battle's interpretation of RCW 69.50.408 is at odds with our decision in In
re Personal Restraint of Hopkins.7 There, we concluded that RCW 69.50.408 is
not discretionary and "automatically doubles the statutory maximum sentence for
convictions under RCW 69.50[.]"8 We reached that conclusion after comparing
RCW 69.50.408 with other similar statutes and considering the policies reflected
in amendments to RCW 69.50.9 Battle asks us to revisit our holding in Hopkins,
arguing that our reasoning was flawed. We decline to do so for several reasons.
First, in a case cited by the State but ignored by Battle, the supreme court
held that "RCW 69.50.408 doubles the maximum sentence."10 Comparing
RCW 69.50.408 with another statute, the supreme court found "strong evidence
that the legislature meant both statutes to have the same effect - the effect of
doubling the statutory maximum sentence."11 Although the court did not
expressly address whether the doubling of the maximum sentence is automatic
or discretionary, it cited Hopkins with approval and its language strongly supports
our holding in Hopkins that the doubling is automatic.12 Significantly, the
789 Wash. App. 198, 200-03, 948 P.2d 394 (1997).
8 Id at 203.
9 Id. at 200-02.
1d~in re Personal Restraint of Cruz. 157 Wash. 2d 83, 90, 134 P.3d 1166 (2006).
11 Id.
12 See State v. Roy. 147 Wash. App. 309, 315, 195 P.3d 967 (2008) (citing Cruz and stating
that "[t]he maximum sentence available remained double the initial maximum sentence, whether
the judge chose to impose it or not").
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No. 68250-4-1/5
Supreme Court Commissioner's ruling in Battle's personal restraint petition,
which the supreme court declined to modify, relied on Cruz in concluding that the
statute "automatically" doubles a maximum sentence.
Second, Battle's claim that Hopkins misinterprets the Legislature's intent
overlooks the presumption that the legislature is aware of judicial interpretations
of its enactments and that its failure to amend a statute following a judicial
interpretation indicates its acquiescence in that interpretation.13 The
Legislature's silence following Hopkins supports our adherence to it here.
Battle argues alternatively that even if his original sentence was incorrect,
the court violated double jeopardy in correcting it because he had "a legitimate
expectation of finality in its terms." But a defendant who seeks review of a
sentence cannot claim an expectation offinality.14 Having employed the review
process of a personal restraint petition to request resentencing, Battle was on
notice that his sentence could be altered and even increased. Because Battle
had no legitimate expectation of finality, there was no double jeopardy violation
when the trial court corrected his maximum term.
Battle has filed a pro se Statement of Additional Grounds for review in
which he collaterally attacks his conviction and sentence. These claims are
13 Citv of Federal Way v. Koenig. 167 Wn.2d341, 348, 217 P.3d 1172 (2009) ("This court
presumes that the legislature is aware of judicial interpretations of its enactments and takes its
failure to amend a statute following a judicial decision interpreting that statute to indicate
legislative acquiescence in that decision.").
14 See State v. Larson. 56 Wash. App. 323, 329, 783 P.2d 1093 (1989); Hardestv, 129
Wn.2d at 312-13.
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No. 68250-4-1/6
outside the scope of the superior court's order, which simply corrected the
judgment and sentence. They are therefore beyond the scope of our review.15
We affirm the judgment and sentence.
Cm^-
WE CONCUR:
*****, y-
15 See State v. Parmelee. 172 Wash. App. 899, 905-06, 292 P.3d 799 (2013) (because
offender score issue was not considered by supreme court when it decided personal restraint
petition and remanded to the superior court on other grounds, and because offender score issue
was not considered by superior court on remand, issue was not properly before court of appeals
on appeal from remand); State v. Kilgore. 167 Wash. 2d 28, 38-42, 216 P.3d 393 (2009) (where trial
court on remand from a first appeal exercises no independent judgment and simply corrects a
judgment and sentence, there are no new appealable issues to raise on appeal of the corrected
sentence) (citing State v. Barberio. 121 Wash. 2d 48, 50-51, 846 P.2d 519 (1993)).
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