### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.
JOSHUA DAVID LAMBERT,

Appellant. No. 78621

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- I DIVISION ONE UNPUBLISHED OPINION

A PPELWICK , J.

— A jury convicted Lambert of eight offenses , including murder , kidnapping, and burglary

. This court reversed two of Lambert’s convictions o n appeal . On remand, the trial c ourt resentenced Lambert on his six remaining convictions. Lambert now appeals f rom the resentencing. He contends the charging document failed to adequate ly app rise him o f the elements of the charged crimes. Lambert also raises claims related to restitution, his offender

score , exceptio nal 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, Josh ua Lambert murdered both of his grandfathers at their respective homes, attacked and tied up his great

- aunt , and committed a number of other crimes.

1 197 Wn.2d 170, 481 P.3d 521 (2021)

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S tate v. Lambert , 199 Wn. App. 51, 56

- 58 , 395 P. 3d 1080 (2017). T he 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 unlawfu l 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 re jected Lambert’s motion for acqu ittal because he did n ot meet his burden to prove he was not guilty by reason of insanity

. Id

. at 6 8

. The jury returned verdicts find ing Lambert guilty of all charg ed crimes and found that he was armed with a dea dly weapon as to five

co unts

. Id

. at 68

- 69. The jury also found aggravating factors as to both counts of murder, kidnapping, and one of the burglary counts. S pecifically, 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, t he 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 o f 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, weNo. 78621

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reversed two convictions: Lambert’s murde r conviction (of his maternal grandfat her ) 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 hea ring. 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 t he 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 ele ments of the charged crimes. He further contends that he can raise these issue s 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 bee n raised on the first appeal.” State v. Mandanas , 163 Wn. App. 712, 716, 262 P.3d 522 (2011). Even if the issue raisedNo. 78621

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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 dec ision is final, review

as a ma tter 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 ap pellate 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

ea rlier review of the same case.” But , “ ‘[t]his rule does not revive automatically

ever y issue or decision which was not ra ised in an earlier appeal.’” State v. Gregory , 192 Wn.2d 1, 31, 427 P.3d 621 (2018) (quoting State v. Barberio , 121 Wn.2 d 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 a nd 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 resentenci ng 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 ind ependent judgment to decide the same issue on rema nd that he raises on appeal . Lambert’s motion, however, sought to compel the State to identify facts suppor ting the jury’s findings of aggravating factors and to provide the reasons why those facts justified anNo. 78621

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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 permissi on. Furthermore, the re is nothing in the rec ord to suggest that the court “considered and ruled” on the issue Lambert raised in his motion , and did not simply deny it as untimely

. T he trial court on remand did not address the issues to which Lambert now assigns e rror. RAP 2.5(c)(1) does not a pp ly. T he 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 m atter 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 wi thin 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 resen tencing that he wished to be present for an “evidenti ary hearing ” on restitution, he did not raise specific objec tions or mention evidence he intended to present. When the court imp osed restitution in 2013 and again at the 2018 resentencing , Lambert did not challenge the imposition

2 The 2018 judgment and sen tence reduced Lambert’s re stitution by $5,750, ba sed on the removal of a crime victim’s compensation claim presumably re lated to the dismissed counts.No. 78621

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or amount of restitution and presente d 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 calc ulation 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 re queste d 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 crimin al 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 C onvictions A ffected by State v. Blake While this appeal wa s pending, the Washington Supreme Court decided Blake , and held t hat former RCW 6 9.50.4013(1) (2017), Washington’ s felony drug possession statute, violated the due process clauses of the state and federal constitutions and was therefor e void. 197 Wn.2d at 195. As Lambert agues, a nd the State concedes, as a result of this decision, Lambert’s 2001 ( Oregon ) and 2002 (Washington ) convictions of drug possession must be ex cluded from his offender

3 The 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 ex cluded from Lambert’s o ffender score for oth er reasons, we need not address the sufficiency of the proof of the conviction.No. 78621

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score. See State v. Ammons , 105 Wn.2d 175, 187

- 88, 713 P.2d 719, 718 P.2d 796 (1986) ( prio r conviction that is determined to be constitutionally invalid may not b e 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 ra nge for this crime, or for any of Lambert’s other crimes. See RCW 9.9 4A.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 th e sentencing court would have imp osed 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)).
H ere, a change in the law since Lambert was resent enced 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. T he c ourt dete rmined that 80 years was an appropriate sentence due to the se verity of Lambert’s crimes of convic tion , 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 vali d.”

4 Lambert’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.No. 78621

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In view of the record, we are co nvinced 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 exceptio nal 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 rang e must also be found by a unanimous jury beyond a r easonable doubt). But , the legal basis for the exceptional sentence is clearly set forth in the court’s findings and conclusions, and does not in clude future dangerousness or la ck of remorse. Th e 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 sentenc e is not “clearly exce ssive.” RCW 9.94A.537(6); RCW 9.94A.585(4). In fixing the duration of Lambert’s sentence , the co urt considered the brutal and senseless nature of Lambert’s crimes, his obvious dangerousness , and his refusal to acce pt responsibility for his acts. While n one of these factors constituted the legal basis for the exceptional sen tence, they were relevant to the court’s discretionary d etermination of the length of the sentence. The court did not

5 Likewise, e ven if we assume that , in view of Lambert’s reduced offender score, the court would not find that the “Free Crimes A ggravator” under RCW 9.94A.535(2)(c) applies , we are confident the sentencing court would impose the same ex ceptional sente nce because of its express finding that any one of the aggra vating factors was sufficient to support the sentence

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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 b ecause 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 constitution s

. W ASH

. C ONST

. 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 absol ute and the trial court mus t determine whether a defendant’ s request for self

representation is volun tary, knowing, and intelligent. State v. Madsen , 168 Wn.2d 496, 504 , 229 P.3d 714 (2010). This court review s 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)). A t the first hearing after this court issued its mandate, th e State asked the trial court to (1) set a heari ng 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 Stat e indicated th at Lambert had filed a motion before the mandate issued indicating h is 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.No. 78621

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up the motion and after conducting a thorough colloquy addressing the risks of sel f

- 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 t rial, but not at resentencing. T he record does not support his claim. Despite a mple 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 inc lude

a certain and imminent r ese ntencing hearing and potential ly, a later retrial on two charges. Later, when the resentencing was tentatively scheduled , Lambert i nformed the court of hi s intent to move for a presente nce investigation report and seek a mitigated sentence du e 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 ten able 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 co urt should have addressed the merits, instead of denying the motion on procedural grounds

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to a motion for funding. Accordingly, Lambert, who has the burden of p erfecting the record, has not provided all of the evidence necessary to review this issue

. See RAP 9.2( b) (party must provide the po rtions of the verbatim proceeding “necessary to present the issues raised on review.”) ; State v. Sisouvanh , 175 Wn .2 d 607, 619, 290 P.3d 942 (2012) ( appellate court may decline to address issues where record is incomplete ) . In any event, it appears that t he court denied his motion because the case had not yet been remanded to the trial court. T he
tr ial 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 revi ew has been accepted )

. And , La mbert does not allege prejudice . T he record indicates that he

was able to file subsequent requests and the court late r ordered funding for some expenses

. We remand for correction of Lambert’s offender score consistent with B lake , but otherwise affirm his judgment and sentence.

WE CONCUR: