# FILE IN CLERKS OFFICE llFREMEc:cxm.ITAI'EOFINIINIR:IN DATE 

### NOV 26

## 2014

# ~As· TN$. opfnfonwas filed for record 

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## Nov. c911 l«f

INTHE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,
v. IGNACIO COBOS, Petitioner. ) ) ) ) ) ) ) ) )



## _________________________) No. 89900-2

EnBanc
Filed 

### NOV 2

### 6 2014

GONZALEZ, I.-Ignacio Cobos represented himselfat his sentencing hearing and objected to the State's calculation ofhis offender score. The trialjudge sentenced Cobos withthe offender score asserted by the State without holding an evidentiary hearing because Cobos's former counsel had agreed to the score priorto being discharged. The Court ofAppeals found the sentencing court erred in failing to hold
an evidentiary hearing, remanded for resentencing, and concluded that both sides could introduce supplemental evidence ofthe proper score onremand. 

### State v. Cobos, 178 Wn. App. 692, 700-01, 315 P.3d 600 (2013) (citing LAWS OF 2008, ch. 231, § 4 (codified at RCW 9.94A.530(2))). We granted review. 

### State v. Cobos, 180 Wn.2d 1008, 325 P.3d 913 (2014). Cobos argues the State is barred from offering new evidence onremand under the common law "no second chance" rule. Our decision isState v. Cobos, No. 89900-2 controlled by 

### State v. Jones, No. 89302-1 (Wash. Nov. 26, 2014), where we held that RCW 9.94A.530(2) supersedes our common law "no second chance" rule. Accordingly, we affirm the Court ofAppeals. FACTS AND PROCEDURAL HISTORY Cobos was convicted ofdelivery ofmethamphetamine, possession of methamphetamine, and voyeurism. Athis sentencing hearing, Cobos moved to represent himself. Beforethe courtruled on his motion, defense counsel and the State agreed Cobos had an offender score of9. The court granted Cobos's motionto represent himself, and sentencing was continued without revisiting the offender score calculation. 1 Atthe second sentencing hearing a week later, Cobos objected to the State's summary ofhis criminal history. The State offered to obtain certified copies ofthejudgments and sentences and suggested a two-week continuance. Cobos objected to a continuance and maintained his objection to the calculation ofhis offender score. Verbatim Report ofProceedings (Feb. 14, 2012) at 24 ("I don't agree to that calculation ofthe offender score.... And ifthe Court wants to continue the sentencing, that's up to the Court
.... Ijustwantto --to note an objection."). The courtproceeded with sentencing based onthe State's asserted offender score of9 and sentenced Cobos to 120 months' confinement. Cobos appealed, and the Court ofAppeals held the sentencing court erred when

1This summary offacts is based on the criminal minute sheet from the February 7, 2012, sentencing. A transcript ofthat hearing is not in ourrecord. 2State v. Cobos, No. 89900-2 it failed to hold an evidentiary hearing and instead relied on material facts to which Cobos objected. Cobos, 178 Wn: App. at 700. The Court ofAppeals held the parties could introduce new evidence regardingcriminal history pursuantto the 2008 statutory amendmentto the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. I

### d. at 700-01. Cobos filed apro se petition for review, which we granted. Cobos, 180 Wn.2d 1008. Cobos declined appointment ofcounsel to handle his appeal. ANALYSIS Cobos argues the State should be held to the existing record onremandunder the common law "no second chance" rule. Under our common law, onremand for resentencing following the appeal ofa sentencing error, the State was permittedto introduce new evidence ifthe defendanthad not made a specific objection at sentencing. State v. Ford, 137 Wn.2d 472, 485-86, 973 P.2d452 (1999). Butsee In
re Pers. Restraintof Cadwallader, 155 Wn.2d 867, 876-78, 123 P.3d456 (2005) (holding thatunder unique circumstances, State was notpermitted to introduce new evidence on remand even though defendant did not object). Butwhere a defendant made a specific objection at sentencing, the State was generally held to the original sentencing record. Ford, 137 Wn.2d at 485; State v. Lopez, 147 Wn.2d 515, 520-21, 55 P.3d 609 (2002). Butsee State v. Bergstrom, 162 Wn.2d 87, 96-98, 169 P.3d 816 (2007) (permitting State to introduce new evidence where defense counsel had

3State v. Cobos, No. 89900-2 acknowledged criminal history over defendant's prose objection). The "no second chance" rule served to preservejudicial economy. See Jones, slip op. Subsequent to the development ofthe common law rule, the legislature ainended several provisions ofthe SRA in 2008 "to ensure that sentences imposed accurately ret1ect the offender's actual, complete criminal history, whether imposed at sentencing or upon resentencing." LAws OF 2008, ch. 231, § 1. Inrelevantpart, RCW 9.94A.530(2) was amendedto provide that "[o]nremand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the courtto consider all relevant evidence regarding criminal history, including criminal history not previously presented." LAws OF 2008, ch. 231, § 4. InJones, we held thatthis provision ofRCW 9.94A.530(2) superseded our
' ' common law "no second chance" rule. Cobos does not challenge the statute and raises no additional arguments for our consideration, and so we follow our decision in Jones and affirm the Court ofAppeals.

4State v. Cobos, No. 89900-2



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