### FILED SEPT.24,2013 In theOfficeofthe ClerkofCourt WA StateCourtofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, 

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### No. 30672-1-111 ) Consolidated with Respondent, 

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### No. 31043-4-111 ) v. 

### ) ) MARQUIS JONES, 

### ) UNPUBLISHED OPINION 

### ) Appellant. 

### ) ) ) In re Personal Restraint Petition of: 

### ) ) MARQUIS JONES, 

### ) ) Petitioner. 

### ) BROWN, J.
- Marquis Jones appeals his resentencing, contending his 2001 convictions and firearm sentence enhancements on two counts ofattempted first degree robbery violate doublejeopardy principles. In a personal restraint petition (PRP), Mr. Jones argues the trial court in 2000 violated erR 4.1 and deprived him of due process by failing to arraign him on the State's amended information where he did not receive a copy of it and lacked actual notice of its charges. Additionally, Mr. Jones filed a statement ofadditional grounds for review that attaches evidence supporting hisNo. 30672-1-111, consol. with No. 31043-4-111 State v. Jones; In re Pers. RestraintofJones PRP. We conclude his appeal presents no reviewable error claim and his PRP is time barred. Accordingly, we dismiss Mr. Jones's appeal and PRP. FACTS In April 2000, the State charged Mr. Jones with first degree premeditated murder. The trial court arrajgned him on the original information. In August 2000, the State filed amended information charging him with first degree felony murder, first degree burglary, first degree robbery, two counts ofattempted first degree robbery, and first degree unlawful firearm possession. The amended information alleged he committed the murder, burglary, robbery, and attempted robberies while armed with a firearm. He claims the trial court did not arraign him on the amended information, he did not receive
a copy of it, and he lacked actual notice of its charges. Following a bench trial, thetrial court found Mr. Jones guilty offirst degree felony murder, first degree burglary, one count ofattempted first degree robbery as a lesser included offense, two counts ofattempted first degree robbery as charged, and first 1 degree unlawful firearm possession. The court found he committed the murder, 

# I burglary, and attempted robberies while armed with afirearm. The courtfiled his 

# I t judgment and sentence with the clerk on January 29,2001 and issued an order 

# I correcting his sentence the next day. He timely appealed his convictions while the time 

# I for appealing his sentences passed. We affirmed his convictions and our Supreme 

# I Court denied review. State v. Jones, No. 19909-6-111,2002 WL 982618, at *1 (Wash. 

# I Ct. App. May 14,2002), noted at 111 Wn. App. 1039, review denied, 60 P.3d 93. Then, 

# I this court issued a mandateterminating review on November5,2002. 

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## [ f ;. t, r lNo. 30672-1-111, consol. with No. 31043-4-111 State V. Jones; In re Pers. RestraintofJones Between 2004 and 2006, Mr. Jones apparentlyfiled two unsuccessful PRPs based on newly discovered evidence. In September2010, he filed a PRP with our Supreme Court, arguing his convictions forfirst degree burglary and one count of attempted first degree robbery as predicates to his first degree felony murder conviction violated doublejeopardy principles. The State conceded this argument. Additionally, he challenged his firearm sentence enhancements. A five-justice department ofour Supreme Court unanimously accepted the State's concession on his doublejeopardy argument but rejected his challenges to his firearm sentence enhancements. Thus, in September2011, our Supreme Court granted Mr. Jones's PRP in part and remanded to the trial court with directions to vacate his convictions forfirst degree burglary and one count ofattempted first degree robbery, and resentence him accordingly. On remand, thetrial court vacated Mr. Jones's convictions for burglary and one count ofattempted robbery. The court imposed 429 months' imprisonmentwith a 120­ month firearm sentence enhancementfor his felony murder, 96.75 to 120 months' imprisonment with a 72-month firearm sentence enhancementfor each ofhis two counts ofattempted robbery, and 116 months' imprisonmentfor his unlawful firearm possession. The court ordered he serve the felony murder sentence concurrent with the other base sentences but consecutive tothe other sentence enhancements, for a total of693 months' imprisonment. These are the same base sentences and firearm sentence enhancements the court previously imposed for his remaining convictions.

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# , , INo. 30672-1-111, consol. with No. 31043-4-111 State V. Jones; In re Pers. RestraintofJones The court arrived atthis result afterconsidering and rejecting one ofMr. Jones's
newarguments. Initially, the court assured the parties it had thoroughly prepared itself for resentencing: In preparation fortoday's extensive hearing, everyone should know that I spenta greatdeal oftime preparing for this. I read the entire court file, which is actually fourfull volumes. I read all ofcounsels' respective memorandums. I read the defense memorandum from top to bottom, which was quite voluminous. I also was apprised ofa great deal ofcase law, and Ithink the parties and Mr. Jones deserve to have the best the Court has to offer. So Itookthe time to go through all ofthat material, and I actually spenttill almost 9:00 at night here last night going through this. That's how important Ithink this is. [The issue is], whatto dowith the balance ofthe counts which survive So, as I said, I've studied this file very carefully. I'm certainly mindful of the argument ofCounsel. Ithink I'm well-advised regarding the law in this area that has been provided. Report of Proceedings (RP) (Feb. 10,2012) at 46-47,50. Then, the court extensively discussed Mr. Jones's requestfor an exceptional sentence downward, ruling: Butthe question is,

...whetherthe Court should consider [Mr. Jones's troubled youth and hopeful adult progress] this morning as a mitigating factor in terms of resentencing as to this gentleman. I have considered the same. I've considered it in great regard. Frankly, I am not necessarily convinced thatthe Court should adoptany mitigating factorthis morning.

. .. Iwill not be directing a mitigation sentence downward. RP (Feb. 10,2012) at 54. Finally, the court declined to consider Mr. Jones's request to halve the firearm sentence enhancements because a five-justice department ofour Supreme Court had unanimously rejected this portion ofhis PRP: 

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!No. 30672-1-111, conso/. with No. 31043-4-111 State v. Jones; In re Pers. RestraintofJones So let me nowturn to the issue ofthe various enhancements

... ,the most significantfact ofthe enhancements being the doubling thatwas ordered

.... Counsel for Mr. Jones has raised Ithink a very valid and solid argument regarding a significant point here that the enhancements and the doubling and whetherthe underlying predicate offense was ever demonstrated atthe trial Court level

....

. . . [T]he language ofthe Supreme Court, which I've read several times, from September 7,2011, is very telling. Iwould submit to counsel it's mandatory language, and it reads, again, "Mr. Jones' challenge to the firearm enhancements is unanimously rejected." That's mandatory language, again, as far as this Court considers. It does make clearto methatfirearm enhancementwas certainly a matter that the appellate court had under its review and entertained and should not be considered bythe trial Courtfor purposes of resentencing, for purposes ofeithervacating those enhancements, reconsidering them, modifying them. Theywere unanimously rejected atthe appellate level, and Iwill not be changing anything in that regard as to sentencing this morning. RP (Feb. 10,2012) at 54-56. The trial courtfiled an amended judgment and sentence on February 13, 2012. On February 15, 2012, Mr. Jones moved to vacate all his convictions underCrR 7.8, arguing the trial court in 2000 did not arraign him on the amended information, he did not receive a copy ofit, and he lacked actual notice of its charges. He appealed his amended judgment and sentence. The trial court transferred his motion to this court for treatment as a PRP. ANALYSIS 

### A. DirectAppeal The issue is whether Mr. Jones's appeal presents a reviewable error claim. The State argueswe mustdismiss his appeal because his new contentions address matters 

# I I ! beyond the scope ofthe trial court's action on remand. 

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### tNo. 30672-1-111, consol. with No. 31043-4-111 State V. Jones; In re Pers. RestraintofJones On remand, a trial court may "exercise independentjudgment" regarding issues the parties did not raise in earlierappellate review and, where it does so, the decision is subjectto laterappellate review. RAP 2.5(c)(1) cmt., 86 Wn.2d 1153 (1976); see State
V. Barberio, 121 Wn.2d 48,50-51,846 P.2d 519 (1993). But "a case has no remaining appealable issues where an appellate court issues a mandate reversing one ormore counts and affirming the remaining count[s], and where the trial court exercises no discretion on remand astothe remaining final counts." State V. Kilgore, 167 Wn.2d 28, 37,216 P.3d 393 (2009). "Only ifthe trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue does it become an appealable question." Barberio, 121 Wn.2d at 50. Here, the trial court considered Mr. Jones' argumentfor an exceptional sentence downward and decided it against him. Thus, the court exercised independentjudgment
on this issue by reviewing and ruling on it. But Mr. Jones does not raise this issue in his direct appeal. He instead argues two of his attempted robbery convictions and firearm sentence enhancements violate doublejeopardy principles because they are premised
on the same actus reus. The court neverconsidered this argument on the record and, unfortunately, did not explain why it failed to do so. Mr. Jones suggests the court confused this argumentwith his request to halve all four of his firearm sentence enhancements. He then suggests the court abused its discretion by mistakenly believing our Supreme Court's order deprived it ofauthorityto rule on this argument. But the trial court clearly read the orderas addressing Mr. Jones's argument on "doubling" ofhisfirearm sentence enhancements solely. RP (Feb. 10,2012) at 55. 

### 6No. 30672-1-111, consol. with No. 31043-4-111 State V. Jones; In re Pers. RestraintofJones While our record does not contain his most recent PRP to our Supreme Court, he represented to both the trial court and this court that his argument concerned whether the State proved the prerequisite for "doubling" his firearm sentence enhancements. CP at 61, 66; Opening Sr. at 10. This argument rested on different grounds than those Mr. Jones raises in his direct appeal. Our record shows Mr. Jones raised his current doublejeopardy argumentforthe firsttime on remand and, while the trial court assured the parties it had thoroughly prepared itselffor resentencing, it neverconsidered his current doublejeopardy argument on the record. In sum, the court did not exercise independentjudgment on the issue he raises in his direct appeal. Therefore, his appeal presents no reviewable
error claim. 

### S. PRP The issue is whether Mr. Jones's PRP is time barred. 1 The State argues we mustdismiss his PRP because he filed it more than one year after his originaljudgment and sentence became final. Where atrial courtwith competentjurisdiction enters a facially valid2judgment and sentence, a defendant must collaterally attack thejudgment ifat all within one year ofthe date it becomes final. RCW 10.73.090(1). A PRP is a collateral attack. RCW 10.73.090(2). Ifthe defendant does not bring a timely direct appeal, thejudgment

1 Considering our analysis below, we do not reach the parties' arguments on whether Mr. Jones's PRP is procedurally barred under RAP 16.4(d) or RCW 10.73.140. 2 Mr. Jones does notargue thetrial court's alleged error rendered his judgment and sentence facially invalid. 

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,No. 30672-1-111, consolo with No. 31043-4-111 State v. Jones; In re Pers. RestraintofJones becomes final for PRP purposes on the date the trial courtfiles it with the clerk. RCW 10.73.090(3)(a). Ifthe defendant brings a timely direct appeal, thejudgment becomes final for PRP purposes on the date the appellate court issues a mandateterminating review. RCW 10.73.090(3)(b). But thejudgment is notfinal until both the convictions and sentences are final. In re Pers. RestraintofSky/stad, 160 Wn.2d 944, 946, 952, 955, 162 P.3d 413 (2007). Essentially, ajudgment becomesfinal for PRP purposes "when all litigation on the merits ends." Id. at 948-49. In this context, litigation on the merits includes remand from direct review-eitheran appeal to ourstate courts alone oran appeal to our state courts followed by a petition for certiorari tothe U.S. Supreme Court. RCW 10.73.090(3); Sky/stad, 160 Wn.2d at 948-52. But remand from a successful PRP cannot restart litigation on the merits so asto extinguish finality for purposes of subsequent PRPs. See Sky/stad, 160Wn.2d at 948-52. As our Supreme Court recently stated, [O]nce the one-yeartime limit has run, a petitioner may seek reliefonlyfor the defectthat renders thejudgment notvalid on its face [under RCW 10.73.90] (orone ofthe exceptions listed in RCW 10.73.100). And when that defect is cured, the entry ofa corrected judgment does nottrigger a newone-yearwindowforjudgment provisions thatwere always valid on theirface.

. .. [R]aising a claim underone ofthe exceptions

... does not open the doorto othertime-barred claims. In re Pers. RestraintofAdams, No. 87501-4, slip op. at8-12 (Wash. Sept. 12,2013) (discussing In re Pers. RestraintofCoats, 173 Wn.2d 123,267 P.3d 324 (2011); Sky/stad, 160Wn.2d 944).



### 8No. 30672-1-111, consol. with No. 31043-4-111 State v. Jones; In re Pers. RestraintofJones Here, the trial courtfiled Mr. Jones's originaljudgment and sentencewith the clerk on January29, 2001 and issued an ordercorrecting his sentence the next day. He timely appealed his convictions while the time forappealing his sentences passed. We affirmed his convictions and our Supreme Court denied review. Jones, 2002 WL 982618, at*1. Then, this court issued a mandate terminating review on November5, 2002. Thus, his convictions and sentences became final on November5,2002. See RCW 10.73.090(3)(b). But he filed his current PRP with the trial court nearly 10years later on February 15, 2012. Mr. Jones's most recent PRP to our Supreme Courtwas timely becausethe doublejeopardy argument he raised there fit an exception tothe one year limit on collateral attacks. See RCW 10.73.100(3). But remand from that successful PRP did not restart litigation on the merits so asto extinguish finality for purposes ofsubsequent PRPs. See Skylstad, 160Wn.2d at 948-52. In otherwords, Mr. Jones's amended judgment and sentence did not remove thetime bar on his current PRP tothis court. SeeAdams, slip op:at 8-12. Vacating his unlawful convictions and resentencing him did not affectthe finality of his remaining convictions. See id.; cf. McNutt v. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848 (1955), overruledon othergrounds byState v. Sampson, 82 Wn.2d 663,513 P.2d 60 (1973); In re Pers. RestraintofCarle, 93 Wn.2d 31,34,604 P.2d 1293 (1980); Kilgore, 167 Wn.2d at 37. Therefore, his PRP is time barred.Mr. Jones's appeal and PRP are dismissed. 

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# i r J ;No. 30672-1-111, consol. with No. 31043-4-111 State V. Jones; In

### re Pers. RestraintofJones A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Brown, J. 

# (j WE CONCUR:

# ~Iacr Siddoway, A.C.J.

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