State Of Washington v. Michael J. Rowland ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, ]
No. 69311-5-1
Respondent, ] '-v—.
DIVISION ONE
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MICHAEL J. ROWLAND, ] UNPUBLISHED OPINION
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J F|LED: OCT 142013
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Appellant.
Per Curiam. — Michael Rowland appeals the exceptional sentence imposed
following his second resentencing for first degree murder and taking a motor vehicle
without permission. He contends his sentence violates Blakelv v. Washington, 542 U.S.
296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and sentencing statutes because it is
based on a factual finding made by the court, not a jury. We affirm.
In 1991, a jury convicted Rowland of first degree murder and taking a motor
vehicle without permission. The trial court imposed a high-end standard range sentence
of 361 months and added an exceptional sentence of 180 months based on its finding of
deliberate cruelty. Rowland challenged the basis for the exceptional sentence on direct
appeal. This court affirmed. State v. Rowland, 76 Wash. App. 1072, No. 28109-7-1, 1995
WL 925646 (1995) (unpublished opinion), review denied, State v. Rowland, 126 Wash. 2d
1025, 896 P.2d 63 (1995). The mandate issued on June 26, 1995.
In January 2007, Rowland filed a personal restraint petition challenging his
offender score. This court accepted the State's concession that the offender score
should have been 2, not 3. We remanded for resentencing, stating "[t]he error in the
offender score potentially bears upon the length of the exceptional sentence, but it does
No. 69311-5/2
not implicate the findings that justified imposition of the exceptional sentence." In re
Pers. Restraint of Rowland, 149 Wash. App. 496, 512, 204 P.3d 953 (2009). On remand,
the court left the original exceptional sentence of 180 months intact but reduced the
remainder of the sentence in accordance with the reduced standard range.
Rowland appealed, arguing that his exceptional sentence violated Blakely
because it was based on an aggravating factor found by the court, not a jury. This court
and the Supreme Court affirmed. State v. Rowland, 160 Wash. App. 316, 329, 249 P.3d
635. review granted, 172Wn.2d 1014. 262 P.3d 63 (2011): State v. Rowland, 174Wn.2d
150, 156, 272 P.3d 242 (2012). The Supreme Court held "that Blakely did not apply
when the trial court neither touched the factual findings supporting the exceptional
sentence nor increased the sentence." ]d_. Because the State conceded that Rowland's
offender score was actually one, not two, the Supreme Court remanded "for any further
proceedings." On remand, the court again reduced Rowland's standard range sentence
but left the exceptional sentence unchanged.
Rowland appeals again, arguing, as he did before, that the sentence imposed on
remand violated Blakely because the court relied on an aggravating factor found by the
original sentencing judge, not a jury. He acknowledges that his original sentencing
occurred prior to Blakely and that the exceptional portion of his sentence remains
unchanged. He argues, however, that both the deliberate cruelty finding and exceptional
sentence were imposed anew at his resentencing because the resentencing court had
discretion to alter the sentence. He concludes, therefore, that Blakely applied at his
No. 69311-5/3
resentencing. This argument is controlled by the Washington Supreme Court's decision
following Rowland's first resentencing.
The Supreme Court held that while the resentencing court had discretion to
change Rowland's sentence, Blakely did not apply because the sentencing court "did not
redecide the justification for the exceptional sentence, and the change to Rowland's
standard range left the justification intact" and "did not increase the sentence." Rowland.
174 Wn.2d at 155-56. That holding applies equally to Rowland's second resentencing
hearing. Although Rowland disagrees with the Supreme Court's conclusion, we are
bound by it. MP Med. Inc. v. Wegman, 151 Wash. App. 409, 417, 213 P.3d 931 (2009).
Rowland also argues that RCW 9.94A.537, which authorizes courts to empanel
juries at resentencing for the purpose of considering aggravating factors, required the
court to empanel a jury at his second resentencing hearing. But the statute contains no
such requirement. In any event, both this court and the Supreme Court previously noted
that the factual basis for Rowland's exceptional sentence was upheld in, and became
final after, his initial appeal, and that only his offender score and standard range were in
issue at his subsequent resentencing hearings. Rowland, 160Wn. App at 326; Rowland.
174 Wn.2d at 155. Accordingly, the statute did not apply below.
Affirmed.
For the court: