State Of Washington, V. Joshua D. Lambert

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 78621-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JOSHUA DAVID LAMBERT,
Appellant.
APPELWICK, J. — A jury convicted Lambert of eight offenses, including
murder, kidnapping, and burglary. This court reversed two of Lambert’s
convictions on appeal. On remand, the trial court resentenced Lambert on his six
remaining convictions. Lambert now appeals from the resentencing. He contends
the charging document failed to adequately apprise him of the elements of the
charged crimes. Lambert also raises claims related to restitution, his offender
score, exceptional sentence, waiver of counsel on remand, and a motion for
funding. We remand for correction of Lambert’s offender score consistent with
State v. Blake, but otherwise affirm his judgment and sentence.1
FACTS
During a crime spree that took place on a single day in October 2011,
Joshua Lambert murdered both of his grandfathers at their respective homes,
attacked and tied up his great-aunt, and committed a number of other crimes.
1197 Wn.2d 170, 481 P.3d 521 (2021).
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State v. Lambert, 199 Wn. App. 51, 56-58, 395 P. 3d 1080 (2017). The State
charged Lambert with two counts of murder in the first degree, kidnapping in the
first degree, three counts of burglary in the first degree, taking a motor vehicle
without permission, and unlawful possession of a firearm. Id. at 58. The State
asserted that Lambert was armed with a deadly weapon when he committed
several of the charged crimes and alleged a number of aggravating factors under
RCW 9.94A.535(3). Id.
Based on the evidence presented at trial, the trial court rejected Lambert’s
motion for acquittal because he did not meet his burden to prove he was not guilty
by reason of insanity. Id. at 68. The jury returned verdicts finding Lambert guilty
of all charged crimes and found that he was armed with a deadly weapon as to five
counts. Id. at 68-69. The jury also found aggravating factors as to both counts of
murder, kidnapping, and one of the burglary counts. Specifically, the jury found
particular vulnerability of victims (three counts); use of a position of trust to facilitate
crimes (three counts); deliberate cruelty (one count); destructive and foreseeable
impact of the crime on individuals other than the victim (one count); and
commission of burglary in the presence of a victim (one count). See RCW
9.94A.535(3)(a), (b), (n), (r), (u). Based on these findings, the court imposed an
exceptional sentence of 1,200 months (100 years). Id. at 69.
Lambert appealed his convictions and sentence. We determined there was
insufficient evidence to support Lambert’s conviction of felony murder of Lambert’s
maternal grandfather predicated on the burglary of Lambert’s mother’s home—one
of the alternative charged means of first degree murder. Id. at 55. As a result, we
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reversed two convictions: Lambert’s murder conviction (of his maternal
grandfather) and his burglary conviction (of his mother’s home), and held that the
State could retry Lambert on only premeditated murder and burglary based on the
deadly weapon prong. Id.
The State ultimately elected not to retry Lambert and the trial court
dismissed the two reversed charges on the State’s motion. In June 2018, the trial
court resentenced Lambert on the remaining convictions. Lambert represented
himself, as he had during most of the initial trial proceedings, and presented
exhibits and the testimony of several witnesses at the resentencing hearing.
Based on the 2013 jury findings of aggravating factors related to three counts that
were unaffected by our decision on appeal (murder, kidnapping, and burglary), the
trial court again imposed an exceptional sentence, but reduced the length of the
sentence to 80 years. Lambert appeals.
DISCUSSION
I. Charging Document
Lambert argues that five of his six convictions must be reversed because
the amended information failed to adequately allege the elements of the charged
crimes. He further contends that he can raise these issues in his appeal from
resentencing although he did not challenge the sufficiency of the charging
document at trial or in his first appeal.
“The general rule is that a defendant is prohibited from raising issues on a
second appeal that were or could have been raised on the first appeal.” State v.
Mandanas, 163 Wn. App. 712, 716, 262 P.3d 522 (2011). Even if the issue raised
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is “critical,” appellate courts “do not permit a party to ignore an issue on the first
appeal only to raise the issue on remand.” State v. Fort, 190 Wn. App. 202, 228,
360 P.3d 820 (2015). As our Supreme Court has explained, “[F]inality and
reviewability are intrinsically bound . . . ‘[o]nce an appellate decision is final, review
as a matter of right is exhausted.’” State v. Kilgore, 167 Wn.2d 28, 36-38, 216
P.3d 393 (2009) (quoting State v. Hanson, 151 Wn.2d 783, 790, 91 P.3d 888(2004)).
RAP 2.5 provides exceptions to this rule. Under RAP 2.5(c)(1), an appellate
court “may at the instance of a party review and determine the propriety of a
decision of the trial court even though a similar decision was not disputed in an
earlier review of the same case.” But, “‘[t]his rule does not revive automatically
every issue or decision which was not raised in an earlier appeal.’” State v.
Gregory, 192 Wn.2d 1, 31, 427 P.3d 621 (2018) (quoting State v. Barberio, 121
Wn.2d 48, 50, 846 P.2d 519 (1993)). RAP 2.5(c)(1) applies “only if the trial court,
on remand and in the exercise of its own independent judgment, considered and
ruled again on that issue.” Id. (citing Barberio, 121 Wn.2d at 50).
According to Lambert, this exception applies because he filed a motion
before resentencing to “Compel [the] State to State with Particularity the
Underlying Facts to Support an Aggravating Sentence” and the trial court denied
his motion. Lambert claims the court thereby exercised independent judgment to
decide the same issue on remand that he raises on appeal. Lambert’s motion,
however, sought to compel the State to identify facts supporting the jury’s findings
of aggravating factors and to provide the reasons why those facts justified an
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exceptional sentence. This has nothing to do with Lambert’s arguments on appeal,
which challenge the adequacy of the charging document to apprise him of the
elements of the crimes of murder, kidnapping, burglary, and taking a motor vehicle
without permission. Furthermore, there is nothing in the record to suggest that the
court “considered and ruled” on the issue Lambert raised in his motion, and did not
simply deny it as untimely.
The trial court on remand did not address the issues to which Lambert now
assigns error. RAP 2.5(c)(1) does not apply. The alleged inadequacies of the
charging language are no longer reviewable on direct appeal, and we decline to
address them. See Hanson, 151 Wn.2d at 790 (“Once an appellate decision is
final, review as a matter of right is exhausted.”).
II. Restitution
Lambert claims the trial court erred by failing to conduct a hearing on
restitution within the 180 day statutory period. RCW 9.94A.753(1) requires the trial
court to set the amount of restitution at the sentencing hearing or within 180 days
of that hearing. Here, the court imposed restitution at the 2013 sentencing hearing
and then reduced the amount of restitution at the 2018 resentencing hearing.2
Although Lambert indicated before resentencing that he wished to be present for
an “evidentiary hearing” on restitution, he did not raise specific objections or
mention evidence he intended to present. When the court imposed restitution in
2013 and again at the 2018 resentencing, Lambert did not challenge the imposition
2 The 2018 judgment and sentence reduced Lambert’s restitution by $5,750,
based on the removal of a crime victim’s compensation claim presumably related
to the dismissed counts.
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or amount of restitution and presented no evidence relevant to restitution. Lambert
fails to establish any error with respect to restitution.
III. Offender Score
In a similar vein, Lambert contends that he was deprived of the right to
challenge the State’s evidence supporting its calculation of his offender score. Not
so. The State filed and served a sentencing memorandum before the 2018
resentencing hearing and provided certified copies of the prior judgments and
sentences that were included in the offender score.3 Lambert requested an
“evidentiary hearing.” But, again, he raised no specific objection to the State’s
calculation or the sufficiency of its proof either before or during the resentencing
hearing. He did not contend that any prior convictions encompassed the same
criminal conduct. The court did not prevent Lambert from challenging his offender
score on any basis or from presenting any evidence with regard to the issue.
IV. Prior Convictions Affected by State v. Blake
While this appeal was pending, the Washington Supreme Court decided
Blake, and held that former RCW 69.50.4013(1) (2017), Washington’s felony drug
possession statute, violated the due process clauses of the state and federal
constitutions and was therefore void. 197 Wn.2d at 195. As Lambert agues, and
the State concedes, as a result of this decision, Lambert’s 2001 (Oregon) and 2002
(Washington) convictions of drug possession must be excluded from his offender
3The State acknowledges that it is unclear from the single-sided copy
included in the clerk’s papers whether the copy of Lambert’s Lane County, Oregon
judgment and sentence is certified. Nevertheless, as discussed infra, because that
conviction must be excluded from Lambert’s offender score for other reasons, we
need not address the sufficiency of the proof of the conviction.
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score. See State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d
796 (1986) (prior conviction that is determined to be constitutionally invalid may
not be included in an offender score).
Lambert’s offender score was 12 for the most serious charge, murder in the
first degree.4 A reduction of two points would not affect the standard range for this
crime, or for any of Lambert’s other crimes. See RCW 9.94A.510 (sentencing grid
extends to an offender score of “9 or more”). Resentencing is not required where
the court miscalculates the standard range but “‘the record clearly indicates the
sentencing court would have imposed the same sentence anyway.’” State v.
Chambers, 176 Wn.2d 573, 589, 293 P.3d 1185 (2013) (quoting State v. Parker,
132 Wn.2d 182, 189, 937 P.2d 575 (1997)).
Here, a change in the law since Lambert was resentenced mandates a
reduction of his offender score, but the trial court nevertheless correctly calculated
the standard range. And, the sentencing court imposed a sentence above the
standard range based on the presence of aggravating factors. The court
determined that 80 years was an appropriate sentence due to the severity of
Lambert’s crimes of conviction, without regard to his offender score. The findings
of fact supporting the exceptional sentence expressly state that the seven
aggravating factors found by the jury, “taken together or considered individually,
constitute sufficient cause to impose the exceptional sentence. This court would
impose the same sentence if only one of the grounds [found by the jury] is valid.”
4Lambert’s offender scores for all six crimes ranged from 11 to 14, so after
a reduction of two points, his standard range would remain nine or above for all
crimes.
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No. 78621-1-I/8
In view of the record, we are convinced that the court would impose the same
exceptional sentence notwithstanding a two point reduction in Lambert’s offender
score.5 Accordingly, we remand for correction of Lambert’s offender score.
V. Legal Basis for Exceptional Sentence
Lambert claims the sentencing court unlawfully imposed an exceptional
sentence based on the court’s own findings of future dangerousness and lack of
remorse, and not on findings made by the jury. See Blakely v. Washington, 542
U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (any fact that increases
the penalty above the standard range must also be found by a unanimous jury
beyond a reasonable doubt). But, the legal basis for the exceptional sentence is
clearly set forth in the court’s findings and conclusions, and does not include future
dangerousness or lack of remorse.
The sentencing court had discretion, upon the jury’s findings of multiple
aggravating factors, to impose a sentence up to the statutory maximum, so long
as the sentence is not “clearly excessive.” RCW 9.94A.537(6); RCW
9.94A.585(4). In fixing the duration of Lambert’s sentence, the court considered
the brutal and senseless nature of Lambert’s crimes, his obvious dangerousness,
and his refusal to accept responsibility for his acts. While none of these factors
constituted the legal basis for the exceptional sentence, they were relevant to the
court’s discretionary determination of the length of the sentence. The court did not
5Likewise, even if we assume that, in view of Lambert’s reduced offender
score, the court would not find that the “Free Crimes Aggravator” under RCW
9.94A.535(2)(c) applies, we are confident the sentencing court would impose the
same exceptional sentence because of its express finding that any one of the
aggravating factors was sufficient to support the sentence.
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No. 78621-1-I/9
violate Lambert’s right to a jury trial or impose an exceptional sentence on an
unlawful basis.
VI. Waiver of Counsel
Next, Lambert claims resentencing is required because he did not validly
waive his right to counsel on resentencing.
Criminal defendants have the right to self-representation under both the
state and federal constitutions. W ASH. CONST. art. I, § 22; Faretta v. California, 422
U.S. 806, 807, 955 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The right is not absolute
and the trial court must determine whether a defendant’s request for self-
representation is voluntary, knowing, and intelligent. State v. Madsen, 168 Wn.2d
496, 504, 229 P.3d 714 (2010). This court reviews decisions on a defendant’s
request for self-representation for an abuse of discretion. State v. Coley, 180
Wn.2d 543, 559, 326 P.3d 702 (2014). Waiver of counsel is an “‘ad hoc,’” fact
specific analysis best suited for trial courts. Id. (quoting State v. Hahn, 106 Wn.2d
885, 900-01, 726 P.2d 25 (1986)).
At the first hearing after this court issued its mandate, the State asked the
trial court to (1) set a hearing to resentence Lambert on the remaining counts
unaffected by this court’s decision on appeal, and (2) set an omnibus hearing and
tentative trial date for retrial on charges of murder and burglary. The State
indicated that Lambert had filed a motion before the mandate issued indicating his
intent to waive counsel, as he had in the initial 2013 proceeding.6 The court took
6 Lambert’s written motion does not appear to be included in the record on
appeal.
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No. 78621-1-I/10
up the motion and after conducting a thorough colloquy addressing the risks of
self-representation, found that Lambert’s waiver of counsel on remand was
voluntary, knowing, and intelligent.
Lambert now asserts that he sought only to represent himself at trial, but
not at resentencing. The record does not support his claim. Despite ample
opportunity to do so, Lambert did not place any limitations or parameters on his
request to represent himself. He declined to be screened for eligibility for court-
appointed counsel for any purpose. The record reflects that, when he waived his
right to counsel, Lambert understood that the remand proceedings would include
a certain and imminent resentencing hearing and potentially, a later retrial on two
charges. Later, when the resentencing was tentatively scheduled, Lambert
informed the court of his intent to move for a presentence investigation report and
seek a mitigated sentence due to mental illness. Having represented himself
throughout most of the first trial, Lambert demonstrated awareness of the
procedural posture. Lambert at no time prior to sentencing expressed to the trial
court that he had changed his mind and wanted counsel. The trial court had firm
and tenable grounds for allowing Lambert to represent himself for all purposes on
remand.
VII. Motion for Funding
Finally, Lambert challenges the trial court’s denial of a motion for funding.
Lambert does not elaborate on the nature of funding he requested but argues that
the court should have addressed the merits, instead of denying the motion on
procedural grounds. Lambert provides no citations to the record that correspond
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No. 78621-1-I/11
to a motion for funding. Accordingly, Lambert, who has the burden of perfecting
the record, has not provided all of the evidence necessary to review this issue.
See RAP 9.2(b) (party must provide the portions of the verbatim proceeding
“necessary to present the issues raised on review.”); State v. Sisouvanh, 175
Wn.2d 607, 619, 290 P.3d 942 (2012) (appellate court may decline to address
issues where record is incomplete). In any event, it appears that the court denied
his motion because the case had not yet been remanded to the trial court. The
trial court’s authority to act is limited while appellate review is pending. See RAP
7.2(b) (enumerating issues trial court may address after appellate review has been
accepted). And, Lambert does not allege prejudice. The record indicates that he
was able to file subsequent requests and the court later ordered funding for some
expenses.
We remand for correction of Lambert’s offender score consistent with Blake,
but otherwise affirm his judgment and sentence.
WE CONCUR:
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