State Of Washington, Respondent V. Alan John Nord, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 77435-2-1
Respondent,
V.
ALAN JOHN NORD,
Appellant.
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 22, 2019
LEACH, J. — Alan John Nord appeals his sentence for unlawful delivery of
a controlled substance and unlawful possession of a controlled substance and
challenges the court's imposition of a $200 criminal filing fee. He claims that the
sentencing court mistakenly believed it did not have discretion on remand to
resentence him for the delivery conviction. He also asserts that his sentence for
the unlawful possession conviction exceeds the statutory maximum sentence for
that offense.
First, because this court in an earlier appeal provided the sentencing court
specific instructions on remand, the sentencing court did not have discretion to
resentence Nord. Second, under RCW 9.94A.701(9), a trial court may not
impose a total term of confinement and community custody in excess of the
statutory maximum. Nord's sentence for unlawful possession is unlawful
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because the 12-month community custody term in addition to the 2-year term of
confinement run concurrently with his 10-year sentence for unlawful delivery,
which exceeds the 5-year statutory maximum for unlawful possession. And,
consistent with State v. Ramirez 1 because the lower court found Nord indigent,
the criminal filing fee should be stricken. We remand to the trial court to strike
the community custody term and the criminal filing fee.
BACKGROUND
This is Nord's third appeal to this court. In July 2013, a jury convicted
Nord of unlawful delivery of a controlled substance (methamphetamine), unlawful
possession of a controlled substance (methamphetamine), and attempting to
elude a police vehicle. The maximum sentence is 10 years for unlawful delivery,
5 years for unlawful possession, and 5 years for attempting to elude.2 The court
sentenced Nord to 10 years for unlawful delivery, 2 years for unlawful
possession, and 41 months for attempting to elude. It also imposed 12 months
of community custody for unlawful delivery, 12 months of community custody for
unlawful possession, and approximately $3,000 in restitution.
Nord appealed to this court.3 This court affirmed the drug convictions but
reversed the eluding conviction, vacated the restitution order, and remanded for
resentencing.4 On remand, the sentencing court imposed 10 years for unlawful
1 191 Wn.2d 732, 426 P.3d 714(2018).
2 RCW 69.50.401(2)(b), .4013(1); RCW 46.61.024; RCW 9A.20.021(1)(b),
(c). 3 State v. Nord No 70806-6-1, slip op. (Wash. Ct. App. Mar. 23, 2015)
(unpublished), http://vvww.courts.wa.gov/opinions/pdf/708066.pdf.
4 Nord, No. 70806-6, slip op. at 16, 24.
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delivery and 2 years for unlawful possession to run concurrently with one
another, and 12 months of community custody for each conviction. The court
noted on the judgment and sentence, "community custody to be imposed only if
defendant is released from prison early so there is still time available to serve
comm[unity] custody."
Nord appealed a second time.5 He claimed that 10 years of confinement
and 12 months of community custody for his unlawful delivery conviction
exceeded the statutory maximum term of confinement of 10 years for unlawful
delivery.5 The State conceded error and that this case required remand "so that
the judgement and sentence c[ould] be corrected by striking the 12-month
community custody term and the notation provision."7 This court "accept[ed] the
State's concession" and "remanded for proceedings consistent with this
opinion."5
On remand, Nord's trial counsel asked that the court impose 12 months of
community custody and 9 years as opposed to 10 years of confinement for the
unlawful delivery conviction. The State asserted Nord should not receive a
resentencing hearing because he appealed the specific imposition of the 12
months of community custody, and this court accepted the State's concession
that the community custody provision and notation should be stricken. Nord's
5 State v. Nord, No. 74767-3-1, slip op. (Wash. Ct. App. June 19, 2017)
(unpublished), http://www.courts.wa.gov/opinions/pdf/747673.pdf.
6 Nord, No. 74767-3, slip op. at 5.
7 Nord No. 74767-3, slip op. at 5.
8 Nord No. 74767-3, slip op. at 5, 6.
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trial counsel responded that this court found the sentence imposed was unlawful
so, on remand, the sentencing court maintained discretion to resentence Nord.
The sentencing court signed the State's order striking the 12-month community
custody term for the unlawful delivery conviction and the notation provision; it
stated, "I believe I am to follow the mandate of the Court of Appeals." Nord
appeals a third time.
ANALYSIS
Nord challenges his sentence on two grounds and his criminal filing fee.
Each claim presents an issue of law that this court reviews de novo.9
Unlawful Delivery
First, Nord claims that the sentencing court mistakenly believed that this
court's decision did not allow it discretion to resentence Nord on the unlawful
delivery conviction. We disagree.
Trial courts "must strictly comply with directives from an appellate court
which leave no discretion to the trial court."1° "The trial court's discretion to
resentence on remand is limited by the scope of the appellate court's mandate."11
But when the appellate court remands "for further proceedings" or instructs the
trial court to enter judgment "in any lawful manner consistent with [its] opinion,"
the trial court should "exercise its authority to decide any issue necessary to
9 Mains Farm Homeowners Ass'n v. Worthington, 121 Wn 2d 810, 813,
854 P.2d 1072(1993).
10 State v. Schwab, 134 Wn. App. 635,645, 141 P.3d 658 (2006).
11 State v Kilgore 167 Wn.2d 28, 42, 216 P.3d 393(2009).
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resolve the case on remand."12 When a trial court maintains discretion in
sentencing a defendant, it "must meaningfully consider the [defendant's] request
in accordance with the applicable law."13
Here, Nord claims that the sentencing court mistakenly believed that it did
not have discretion to resentence him on remand. But this court did not remand
with an instruction to enter judgment in any lawful manner consistent with our
opinion. We "remanded for proceedings consistent with [our] opinion."14 Our
opinion states, "The State concedes that this matter should be remanded so that
the judgment and sentence can be corrected by striking the 12-month community
custody term and the notation provision regarding the unlawful delivery count.
We accept the State's concession."15 This court mandated that the lower court
strike the community custody term and notation provision only. This mandate
limited the lower court's discretion to resentence Nord. The sentencing court
correctly understood that it did not have discretion to resentence Nord.
Alternatively, Nord contends that even presupposing no error, this court
should remand for the lower court to reconsider its decision because this court
did not provide the proper remedy in our previous decision. Nord asserts that
when a total sentence exceeds the statutory maximum, the proper remedy is
remand for correction either by amendment or resentencing. He relies on State
12 Schwab, 134 Wn. App. at 645.
13 State v. McFarland, 189 Wn 2d 47, 56, 399 P.3d 1106 (2017).
14 Nord No. 74767-3, slip op. at 6.
15 Nord No. 74767-3, slip op. at 5 (citation omitted).
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v Boyd16 to support this proposition. There, our Supreme Court held that statute
required the trial court to reduce Boyd's term of community custody to avoid a
sentence in excess of the statutory maximum and remanded "to the trial court to
either amend the community custody term or resentence Boyd."17 But Boyd does
not require this remedy. This court had discretion to require a correction on
remand consistent with the State's concession. Nord does not show error.
Unlawful Possession
Next, Nord claims that the sentence for his unlawful possession conviction
exceeds the statutory maximum, which requires remand. We agree.
As a preliminary issue, the State contends that because the lower court
did not exercise its independent judgment on remand, Nord cannot appeal this
issue. The State cites State v. Kilgore" to support the proposition that when a
sentencing court does not exercise its independent judgment on remand, no
appealable issues remain. In Kilgore Division Two of this court affirmed some of
Kilgore's convictions and reversed and remanded others for retria1.19 The State
chose not to retry the reversed convictions.20 Kilgore then challenged the
sentences for the convictions that Division Two had upheld on appea1.21 Our
Supreme Court held that Kilgore could not appeal those sentences because the
trial court made no discretionary ruling on remand and had not conducted a
16 174 Wn 2d 470, 275 P.3d 321 (2012).
17 Boyd, 174 Wn.2d at 473.
18 167 Wn.2d 28, 216 P.3d 393(2009).
16 Kilgore 167 Wn.2d at 32.
20 Kilgore 167 Wn.2d at 32.
21 Kilgore 167 Wn.2d at 32-33.
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resentencing hearing.22 The court stated, "Our rules of appellate procedure
require that the trial court exercise its discretion in order to give rise to an
appealable issue. We will not waive this rule to make exceptions for defendants
where a mere possibility of direct review exists."23 Thus, without some
discretionary decision by the lower court, Kilgore could not raise new issues that
he had failed to raise on direct appea1.24
This reasoning applies here. Consistent with our ruling stated above, this
court's mandate to the lower court to strike only the community custody term and
notation provision prevented the lower court from exercising discretion on
remand. Consistent with Kilgore normally we would decline to review Nord's
claim. But in accordance with our Supreme Court's pronouncement in State v.
McFarland,25 an appellate court has authority "to address arguments belatedly
raised when necessary to produce a just resolution. Proportionality and
consistency in sentencing are central values of the 5RA,[261 and courts should
afford relief when it serves these values" Consistent with this instruction and in
the interest of judicial economy, we review the merits of Nord's claim.
Nord notes that because the trial court required that his 10-year term for
unlawful delivery and his 2-year term for unlawful possession run concurrently,
22 Kilgore 167 Wn.2d at 43.
23 Kilgore 167 Wn.2d at 43.
24 Kilgore 167 Wn.2d at 43-44.
25 189 Wn.2d 47, 57, 399 P.3d 1106 (2017)(citing RAP 2.5(a) and stating
"appellate courts may entertain issues raised for the first time on appeal in the
interest of justice").
26 Sentencing Reform Act of 1981, ch. 9.94A RCW.
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by the time he is released from the unlawful delivery sentence, more than the 5-
year maximum for unlawful possession will have elapsed. So, an additional 12-
month community custody term exceeds the 5-year statutory maximum for
unlawful possession. Nord again relies on Boyd, in which our Supreme Court
held, consistent with RCW 9.94A.701(9), that a trial court may not impose a total
term of confinement and community custody in excess of the statutory
maximum.27
The State responds that a 2-year term of confinement and 12-month
community custody term does not exceed the 5-year maximum for unlawful
possession because RCW 9.94A.171 tolls a defendant's community custody
while he is in confinement. The State relies on State v. Jones 28 in which our
Supreme Court held that credit cannot be granted toward a defendant's
community custody sentence for a defendant's confinement in excess of his
sentence because a defendant must serve his term of community custody in the
community. The court noted that Jones's judgment and sentence did not exceed
the statutory maximum of life in prison for his offense.29 Because Jones does not
involve a sentence in excess of the statutory maximum, it does not apply here.
22 Boyd 174 Wn.2d at 473; see also In re Pers Restraint of Johnson, No.
50461-8-11, slip op. (Wash. Ct. App. Dec. 5, 2017) (unpublished),
http://www.courts.wa.gov/opinions/pdf/504618.pdf (holding Johnson's judgment
and sentence was facially invalid because he could serve a punishment greater
than the statutory maximum as a result of his concurrent sentences and his
community custody term).
28 172 Wn.2d 236, 245-46, 257 P.3d 616 (2011).
29 Jones 172 Wn.2d at 240.
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Consistent with Nord's argument, because his 10-year total term of
confinement in addition to the 12-month community custody term exceed the 5-
year maximum sentence for unlawful possession, his judgment and sentence is
unlawful. This requires remand.
Criminal Akio Fee
Nord asks that this court strike his $200 criminal filing fee from his
judgment and sentence as required by our Supreme Court's recent holding in
State v. Ramirez.3° There, our Supreme Court discussed and applied House Bill
(HB) 1783, which became effective June 7, 2018, and applies prospectively to all
cases on direct appea1.31 Our Supreme Court explained that HB 1783
categorically prohibits the imposition of discretionary legal financial obligations on
indigent defendants.32 In addition, it amended the criminal filing fee statute33 to
prohibit a court from imposing this otherwise mandatory fee on indigent
defendants.34
The trial court found Nord indigent and ordered him to pay the $200 filing
fee. The State agrees that the change in the law applies to Nord's case because
it is on direct appeal and not final. We direct the trial court to strike the $200
criminal filing fee from Nord's judgment and sentence.
30 191 Wn.2d 732, 426 P.3d 714(2018).
31 Ramirez 191 Wn.2d at 738, 747; LAWS OF 2018, ch. 269.
32 Ramirez, 191 Wn.2d at 739.
RCW 36.18.020.
34 Ramirez, 191 Wn.2d at 739; RCW 36.18.020(2)(a),(h).
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CONCLUSION
We remand to the trial court to strike the community custody term and the
criminal filing fee.
WE CONCUR:
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