IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DONALD LEE DYSON, JR.,

Appellant.

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No. 34897-1-III

UNPUBLISHED OPINION

SIDDOWAY, J. — Donald Dyson Jr. appeals a sentence imposed by the trial court 

following this court’s remand for correction of a problem with his sentence. This court 

had affirmed his convictions for first degree assault but held that mandatory minimum 

sentences the trial court imposed under RCW 9.94A.540 must be based on a finding by a 

jury, not the court. State v. Dyson, 189 Wn. App. 215, 217, 360 P.3d 25 (2015) (plurality 

opinion), review denied, 184 Wn.2d 1038, 379 P.3d 957 (2016) (citing Alleyne v. United 

States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013)). 

When an appellate court remands for the trial court to enter only a ministerial 

correction of the original sentence, a defendant has no constitutional right to be present 

for the correction and no right to raise new sentencing issues. State v. Toney, 149 Wn. 

App. 787, 792, 205 P.3d 944 (2009); State v. Ramos, 171 Wn.2d 46, 48, 246 P.3d 811 

FILED

FEBRUARY 20, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34897-1-III

State v. Dyson

2

(2011), aff’d, 187 Wn.2d 420, 387 P.3d 650 (2017). This court’s opinion was arguably 

ambiguous as to whether we ordered a ministerial correction or authorized a full 

resentencing. Dyson, 189 Wn. App. at 228 (stating “we remand for resentencing with 

instructions that the trial court remove the mandatory minimum sentences for each crime” 

and, in the next paragraph, “We vacate Donald Dyson’s sentence and remand for 

resentencing”). At the hearing to address our remand, the trial court allowed Mr. Dyson 

to be present and to speak. 

At the hearing, Mr. Dyson asked the court to impose an exceptional concurrent 

sentence rather than the standard consecutive sentences it had imposed before. He relied 

in part on a competency evaluation prepared by Eastern State Hospital staff following our 

remand, in which staff determined he was competent but observed that he had been 

diagnosed (by history) with posttraumatic stress disorder and had previously suffered a 

traumatic brain injury. 

Having heard from the lawyers and Mr. Dyson, the trial court struck the 

mandatory minimum sentences but kept in place the consecutive standard range 

sentences earlier imposed. Mr. Dyson argues on appeal that the trial court had discretion 

to grant his request for exceptional sentencing but mistakenly believed otherwise, and 

refused even to consider his request.

If the court imposes a standard range sentence, the general rule is that it cannot be 

appealed. State v. Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994). A 
No. 34897-1-III

State v. Dyson

3

standard range sentence can be challenged on the basis that the court refused to exercise 

discretion. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). In 

such a case it is the court’s refusal to exercise discretion that is appealable rather than the 

sentence itself. Id.

By contrast, when a trial court has the authority to conduct a full resentencing on 

remand but chooses not to exercise its independent judgment at that time, there is no 

issue to review in an appeal from the resentencing. State v. Kilgore, 167 Wn.2d 28, 40, 

216 P.3d 393 (2009) (citing State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993)).

The trial court’s actions give rise to no new appealable issues, meaning the defendant’s 

right to appeal in state court was exhausted with issuance of the mandate in the first 

appeal. See id.

Contrary to Mr. Dyson’s contention, the trial court did not conclude that it lacked 

discretion to entertain his request. It announced, instead, that it didn’t need to determine 

whether it had discretion because even if it did, the court would not change the 

consecutive character of the sentences: 

Even if I were so inclined to review my sentence, even if I thought 

I had authority to run things concurrently, which I’m not necessarily 

convinced I do, even if I did, even if I was convinced that this report 

somehow allows me to open the sentence up and reimpose it, I will just 

indicate that I am not so inclined to do that. But I believe the sentence that 

I imposed in light of the evidence that I heard was appropriate at that time 

in January of 2014, and I believe it still is. 
No. 34897-1-III 

State v. Dyson 

And in saying that I want everyone to understand I appreciate how 

long the sentence is but, again, based on what I heard and saw, I thought it 

was the appropriate sentence to impose. And again, I still do. 

Report of Proceedings at 17. 

Because the trial court made clear its intention not to exercise any discretion it 

enjoyed, Mr. Dyson's appeal rights were exhausted with his first appeal. For the same 

reason, we will not consider the statement of additional grounds that Mr. Dyson filed 

following the notice of this appeal. 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Siddoway, J. 

WE CONCUR: 

Pennell, J. 

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