Opinion
No. 28672-0-III.
Filed: September 15, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Spokane County, No. 96-1-01561-1, Linda G. Tompkins, J., entered November 13, 2009.
Reversed in part and remanded by unpublished opinion per Siddoway, J., concurred in by Kulik, C.J., and Sweeney, J.
Travis Lanphier, originally convicted and sentenced in 1997, appeals the trial court's entry of a revised judgment and sentence following a remand by the Supreme Court for correction of his offender score. He argues that the trial court and this court enjoy discretion to correct other alleged errors in his sentence in light of the Supreme Court's remand and that the trial court erred in failing to recognize its discretion. We agree that the trial court had the authority to consider a mitigated exceptional sentence following the Supreme Court's remand and erred in concluding otherwise. We decline to exercise our discretion under RAP 2.5(c)(2) to revisit this court's earlier decision on a firearm enhancement issue where Mr. Lanphier may seek to raise the challenge to his sentence by a further personal restraint petition. We reverse in part and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND Trial
Travis Lanphier was tried in 1997 as an accomplice on six counts of first degree assault. Events leading to the assault began at a Spokane restaurant, where several of Mr. Lanphier's acquaintances fought with another group of customers. Mr. Lanphier was not there. When Mr. Lanphier's acquaintances left the restaurant, they went to his home. Mr. Lanphier listened to them recount how they were accosted and agreed to drive Robert Esparza, one of the alleged victims, back to the restaurant.
Outside the restaurant, Mr. Esparza recognized individuals involved in the fight. As Mr. Lanphier's car approached them, Mr. Esparza, sitting in the front passenger seat, grabbed Mr. Lanphier's handgun from the front console and began firing, injuring six people. Mr. Lanphier sped away after the shots were fired.
At trial, the State contended that the assault was planned at Mr. Lanphier's home and that he was complicit. Mr. Lanphier denied that he was a knowing participant; refused an offer that he plea to a sentence of 15 years; and, while stipulating to other facts constituting the crime of accomplice to first degree assault, denied any intent. He testified that he carried his handgun, for which he had a concealed weapon permit, only for self-defense. He testified that he was taken completely by surprise when Mr. Esparza reached for his gun and committed the assault. The jury rejected his defense and convicted Mr. Lanphier on all counts.
Mr. Lanphier had no prior criminal history. With firearm enhancements added, his sentence to total confinement for the six assaults, with all running consecutively, amounted to over 88 years. Mr. Esparza, the principal to the assault, had accepted the State's offer of a plea and was sentenced to approximately 22 years.
The firearm enhancements were based on an amended information charging that the assault was committed "with a firearm or deadly weapon, to-wit: a handgun" and that referred to former RCW 9.94A.125 (1983) and former RCW 9.94A.310(3) (1996), both of which dealt with firearm enhancements. Clerk's Papers (CP) at 28-29. The State sought a deadly weapon enhancement for each count; the only deadly weapon alleged to have been used in the crime was a firearm. The jury's instruction on the special verdict required for the enhancement informed the jury that it must find that the defendant or another participant in the assault was armed with a deadly weapon at the time of the crimes. They also instructed that a pistol, revolver, or other firearm, whether loaded or unloaded, is a deadly weapon. CP at 21. The finding required by the special verdict forms was of use of a "deadly weapon." Order Transferring Case to Court of Appeals, In re Pers. Restraint of Lanphier, No. 96-1-01561-1, Apps. 8-13 (Spokane County Super. Ct., Wash. Sept. 12, 2008)
(Court of Appeals Cause 27412-8-III).
The jury answered all of the special verdict forms affirmatively. The judgment and sentence stated that "[a] special verdict/finding for use of a firearm was returned" on the six counts, again citing former RCW 9.94A.125 and former RCW 9.94A.310. Clerk's Papers (CP) at 30. In arriving at the 88-year sentence, the trial court added a 5-year firearm enhancement to the sentence for each count.
Mr. Lanphier was sentenced on the basis of an offender score of 10 for one of the counts of first degree assault despite having no prior criminal record. The use of a score of 10 rather than zero increased the standard range for that count by over 12 years.
Mr. Lanphier appealed the judgment and sentence, which was affirmed by this court. Our decision was filed on June 17, 1999 and became final on July 31, 1999.
The case is before us at this time as a result of Mr. Lanphier's fifth collateral attack on his judgment and sentence. His fifth personal restraint petition (PRP), filed in September 2008, complained of error in calculating his offender score and that the trial court erroneously believed it lacked discretion under former RCW 9.94A.400(1)(b) (1996) to grant concurrent sentences for the six serious violent offenses. Given Mr. Lanphier's failure to provide the required certification for this successive petition, we lacked jurisdiction to consider it under RCW 10.73.140 and transferred it to the Supreme Court, to which RCW 10.73.140 does not apply. In transferring the petition to the Supreme Court, we called out the offender score issue as possibly having merit.
The Supreme Court granted the PRP "only on the offender score issue" and "remanded to the Spokane County Superior Court for resentencing with a correct offender score." CP at 81.
At the resentencing hearing on November 13, 2009, there was extensive discussion of the scope of the trial court's discretion on remand. Mr. Lanphier's counsel maintained that the trial court had the authority and duty to correct not only his offender score, but all errors in his sentence. Report of Proceedings (RP) at 4.
The trial court concluded that because the PRP resulting in remand had challenged Mr. Lanphier's sentence based on the court's alleged error as to its discretion to grant concurrent sentences, the Supreme Court's order granting the petition only on the offender score issue implicitly denied the trial court authority to otherwise revisit his sentence. RP at 6. The trial court stated that "clearly were it in this Court's authority, legal authority, I may take another look at the discretion of lining up all of the counts, all of the enhancements[,] but I don't have that." RP at 16-17.
The trial court corrected the offender score, dropping Mr. Lanphier's sentence from 1,065 months to 918 months, or approximately 77 years. RP at 17. Mr. Lanphier appealed.
Postconviction Developments in Washington Law and Issues Raised on Appeal
Deadly weapon versus firearm enhancement. Prior to 1995, an offender faced an additional penalty of up to two years for use of a deadly weapon in committing certain crimes. The definition of "deadly weapon" included a firearm. Former RCW 9.94A.125; former RCW 9.94A.310(3) (1994). For the deadly weapon enhancement to be imposed, the State was required to provide a defendant with notice of its intent to seek the enhancement and the fact finder to specifically find (in the case of a jury, by special verdict) that the crime was committed with a deadly weapon. Former RCW 9.94A.125.
In 1995, penalties for use of a firearm were increased to up to five years by the Hard Time for Armed Crime Act, Laws of 1995, ch. 129 (Initiative Measure No. 159). The act provided an up-to-two-year enhancement for use of a deadly weapon other than a firearm. The charging notice and special verdict requirements of former RCW 9.94A.125 remained unchanged. Given this state of the applicable statutes and instructions in use at the time, Mr. Lanphier proved to be one of a number of defendants who was sentenced to a five-year firearm enhancement based on a jury's finding that a "deadly weapon" was used in committing the crime.
In State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005) ( Recuenco I), rev'd, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) ( Recuenco II), the Washington Supreme Court held that imposing the higher firearm enhancement on the basis of a jury's finding only use of a deadly weapon violated a defendant's Sixth Amendment rights identified in Apprendi and Blakely. In Washington v. Recuenco, 163 Wn.2d 428, 440-42, 180 P.3d 1276 (2008) ( Recuenco III), it held that for purposes of article I, section 21 of the Washington Constitution, harmless error analysis did not apply to the violation. The decision relied at least in part on the fact that the State had not charged Recuenco with crimes or introduced evidence consistent with the use of a firearm. Id. at 440-41; and see State v. Williams-Walker, 167 Wn.2d 889, 912, 225 P.3d 913 (2010) (Fairhurst, J., dissenting). In 2010, a majority of the Washington Supreme Court held in Williams-Walker that a defendant need not demonstrate a charging error for the Blakely/Recuenco "never harmless error" result to apply and that the sentencing enhancement is always strictly limited by a finding reflected in the special verdict, even if a finding of use of a firearm is implicit in the underlying guilty verdict. 167 Wn.2d at 900; In re Pers. Restraint of Cruze, 169 Wn.2d 422, 433, 237 P.3d 274 (2010).
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Our Supreme Court has held that Blakely does not apply retroactively. State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627, cert. denied, 546 U.S. 983 (2005). Mr. Lanphier nonetheless argues that with the decisions in Recuenco III and Williams-Walker it is now clear that any enhancement of his sentence must be strictly limited by the "deadly weapon" finding in the special verdicts returned at his trial. In In re Personal Restraint of Scott, 149 Wn. App. 213, 220, 202 P.3d 985 (2009), review granted, 168 Wn.2d 1010 (2010), Division Two of this court held that a personal restraint petition challenging a sentence that mischaracterizes a jury's finding of a deadly weapon as supporting a firearm enhancement is facially invalid and thereby not subject to the time limit for collateral attacks specified in RCW 10.73.090. The Washington Supreme Court granted review of Scott on March 3, 2010. Mr. Lanphier did not raise this issue in the September 2008 PRP that led to this appeal, but did raise it at the resentencing hearing and argues that the trial court had the authority and the duty to address it.
Discretion to impose mitigated exceptional sentences. At the time of Mr. Lanphier's sentence, former RCW 9.94A.400(1)(b) provided that "[w]henever a person is convicted of two or more serious violent offenses . . . arising from separate and distinct criminal conduct," the sentences "shall be served consecutively to each other." The law was clear that offenses arise from "separate and distinct conduct" when they involve separate victims, as they did in Mr. Lanphier's case. State v. Wilson, 125 Wn.2d 212, 220, 883 P.2d 320 (1994). At the time, former RCW 9.94A.390 (1996) authorized a court to depart from the sentencing standards for an offense upon a finding of substantial and compelling reasons justifying an exceptional sentence.
In 2007, the Washington Supreme Court held that a trial court's discretion to impose an exceptional sentence includes discretion to impose mitigated concurrent sentences, even where consecutive sentences are presumptively called for; it affirmed the Court of Appeals' decision granting Mulholland's PRP and remanding for resentencing where the trial court had mistakenly believed it lacked discretion. In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). Mulholland involved a sentencing circumstance substantially identical to Mr. Lanphier's: a defendant convicted of six first degree assaults arising out of a single drive-by shooting incident, with firearm enhancements — although in Mulholland, the defendant was the shooter. The trial court had been persuaded that it lacked discretion to impose a mitigated exceptional sentence and sentenced Mulholland to 77 years' confinement. Id. at 326 n. 2.
In holding in Mulholland that a trial court could depart from the presumption either way, the Supreme Court characterized this as "a question we have not directly addressed" and recognized that State v. Flett, 98 Wn. App. 799, 806, 992 P.2d 1028, review denied, 141 Wn.2d 1002 (2000), which stated that first degree assault sentences are "required to be consecutively sentenced" might be read to state otherwise, in dicta. 161 Wn.2d at 328, 330.
Mr. Lanphier raised this alleged Mulholland — type error in his fifth PRP at issue in this appeal. In forwarding the PRP to the Supreme Court, we did not call out the alleged Mulholland error as one on which Mr. Lanphier had demonstrated merit, referring to the issue only in a footnote. Mr. Lanphier argues that the trial court had the authority to address this issue at the time of his resentencing and erred in concluding otherwise.
ANALYSIS I
The State's threshold response to Mr. Lanphier's request that we address the alleged Mulholland and Blakely/Recuenco errors is that the proper scope of this appeal is limited to any challenge to the corrected offender score. The State does not challenge the correction of the offender score, nor does Mr. Lanphier. The State discourages us from entertaining any other issue, arguing that others became final years ago and that challenge is foreclosed by collateral estoppel or law of the case. Collateral estoppel, or issue preclusion, applies in criminal cases and precludes the same parties from relitigating issues actually raised and resolved by a former verdict and judgment. State v. Harrison, 148 Wn.2d 550, 560-61, 61 P.3d 1104 (2003) (citing State v. Williams, 132 Wn.2d 248, 253-54, 937 P.2d 1052 (1997)). Issues that were raised and affirmed on appeal are "law of the case" on remand; issues that were never challenged or decided on appeal are not. See id. at 562-63. The State also argues that Mr. Lanphier has followed improper procedure by raising the arguments in this appeal, rather than through a personal restraint petition.
The State does not address RAP 2.5(c), however, which expressly applies "if the same case is again before the appellate court following a remand." The rule implicitly recognizes a trial court's discretion to revisit an issue on remand that was not the subject of an earlier appeal. RAP 2.5(c)(1); State v. Kilgore, 167 Wn.2d 28, 38, 216 P.3d 393 (2009) (citing State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993)). It explicitly authorizes this court, at the instance of a party, to review the propriety of our earlier decisions in the same case and, where justice would best be served, to decide the case on the basis of our opinion of the law at the time of the later review. RAP 2.5(c)(2), 12.2 (decision of the appellate court governs subsequent proceedings "except [inter alia] as provided in rule 2.5(c)(2)"), 12.7(d) ("The appellate court retains the power to change a decision as provided in rule 2.5(c)(2)."). In Kilgore, our Supreme Court held in the context of remand that "it is state law, particularly our Rules of Appellate Procedure, that determines whether a petitioner has exhausted his right to appeal in state court." 167 Wn.2d at 36.
At a minimum, the extent of the trial court's authority on remand and our own authority is properly before us. Cf. United States v. Colvin, 204 F.3d 1221, 1225 (9th Cir. 2000) (a trial court's interpretation of a mandate is subject to appeal, as is the extent of its discretion on remand, citing Nguyen v. United States, 792 F.2d 1500 (9th Cir. 1986)).
II
We first address Mr. Lanphier's argument that the trial court erred in failing to exercise its discretion to impose a mitigated exceptional sentence. The State responds that the record does not support Mr. Lanphier's argument that the court would have considered mitigation and that Mr. Lanphier does not demonstrate how Mulholland can be applied retroactively to his case.
We agree that in initially raising the Mulholland issue in his fifth PRP, Mr. Lanphier did not provide support for his contention that the trial court erroneously assumed that the sentences for first degree assault must be served consecutively. In transferring Mr. Lanphier's PRP to the Supreme Court, we did not identify the Mulholland issue as one as to which Mr. Lanphier had demonstrated merit. CP at 76. To obtain relief through a PRP, it must be supported by facts or evidence, not merely conclusory allegations. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990). The evidence presented must consist of more than speculation, conjecture, or inadmissible hearsay. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). The Supreme Court did not include the Mulholland issue within the scope of its remand. It did not, however, dismiss any part of Mr. Lanphier's petition. CP at 81.
With this appeal, we now have the trial court's apparent concession in the resentencing hearing that in 1997 it did, indeed, believe that it lacked discretion to enter an exceptional mitigated sentence. RP at 16 ("I think it probably should go without stating that, if I believed I had the discretion, I certainly at this point in time would be saying that there may be much more discretion applicable now than there was at the time."). We therefore disagree with the State that Mr. Lanphier has failed to demonstrate a genuine issue in this appeal.
In Barberio, 121 Wn.2d 48, a case arising in the context at issue here — an issue raised for the first time on remand — the court held that RAP 2.5(c) provides that a trial court, in its discretion, may decide to revisit an issue that was not the subject of appeal. In Barberio, the trial court refused to revisit a challenged sentencing enhancement and the court affirmed its exercise of its discretion, but stated, based on advisory committee notes to the Rules of Appellate Procedure, that "[t]he trial court may exercise independent judgment as to decisions to which error was not assigned in the prior review, and those decisions are subject to later review by the appellate court."
121 Wn.2d at 50 (quoting 2 Lewis H. Orland Karl B. Tegland, Washington Practice: Rules of Practice 481 (4th ed. 1991)); accord Kilgore, 167 Wn.2d at 38. A trial court's erroneous belief that it lacks discretion is an abuse of discretion warranting remand. State v. Bunker, 144 Wn. App. 407, 421, 183 P.3d 1086 (2008), aff'd, 169 Wn.2d 571, 238 P.3d 487 (2010).
In Mulholland, the court found that the petitioner met the higher substantive standard for collaterally attacking a nonconstitutional error of law: that the trial court's failure to recognize its discretion to impose an exceptional mitigated sentence constituted a fundamental defect inherently resulting in a complete miscarriage of justice. 161 Wn.2d at 332-33. It held that the PRP was properly granted and remand was proper, even though there was no certainty that the trial court would have imposed a mitigated exceptional sentence; it was sufficient that the trial court's remarks indicated it was a possibility. Id. at 334.
The State nonetheless argues that Mr. Lanphier is entitled to the benefit of Mulholland only if it is retroactive and has not explained how it can be applied retroactively. Br. of Resp't at 9. The State's argument assumes that retroactivity is determined in a remand context in the same manner it is determined in the PRP context.
The considerations applicable to retroactive application in the context of habeas corpus are unique, as recognized by the United States Supreme Court decisions on retroactivity, which Washington courts generally follow. Those decisions recognize that the United States Constitution neither prohibits nor requires retrospective effect of a new rule, and that a determination of retroactivity must depend on weighing the merits and demerits of retrospective application. Linkletter v. Walker, 381 U.S. 618, 629, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) (addressing whether Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), which extended the Fourth Amendment exclusionary rule to the States, would be applied retroactively). Two of the three prongs of the analysis of retroactivity adopted in Linkletter — the extent of the reliance by law enforcement authorities on the old standards and the effect on the administration of justice of a retroactive application — were concerned with comity and finality. See id. at 636. Only one, the purpose to be served by the new standards, was concerned with the interests of the convicted defendant. As observed in a concurring opinion in Mackey v. United States, 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971) by Justice Harlan (whose views were ultimately adopted by majorities of the Court in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) and Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)), in the context of habeas corpus,
[t]he interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.
401 U.S. at 683 (Harlan, J., concurring). Indeed, it has been suggested that "`the potential availability of collateral attack is what created the "retroactivity" problem of Linkletter in the first place'" and that "`there seems little doubt that without that possibility the Court would have given short shrift to any arguments for "prospective limitation" of the Mapp rule.'" Teague, 489 U.S. at 309-10 (quoting Paul J. Mishkin, Foreword: the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 77-78 (1965)). An overarching concern has been the cost that is imposed upon the States by retroactive application of new rules in collateral review, recognizing that "it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards." Id. at 310.
The high court's decisions in Griffith and Teague adopted distinct approaches to retroactive application of new rules depending on whether a case was pending on direct review or otherwise not yet final or whether it was on collateral review. They identified two rationales for greater lenity in applying new rules retroactively to cases pending on direct review or not yet final. The first was to conform to "the principle that this Court does not disregard current law, when it adjudicates a case pending before it on direct review . . . regardless of the specific characteristics of the particular new rule announced." Griffith, 479 U.S. at 326. The second was to treat similarly situated defendants the same, rather than providing relief only to the lucky defendant whose pending appeal was selected for review. Id. at 326-27. Dissenting justices noted that the objective of treating similarly situated defendants the same is imperfectly achieved by a distinction between nonfinal and final cases; they rightly observed that "`otherwise identically situated defendants may be subject to different constitutional rules, depending on just how long ago now-unconstitutional conduct occurred and how quickly cases proceed through the criminal justice system,'" a disparity that the dissent characterized as "`no different in kind,'" but only in number. Id. at 331 (White, J., dissenting) (quoting Shea v. Louisiana, 470 U.S. 51, 63, 105 S. Ct. 1065, 84 L. Ed. 2d 38 (1985) (White, J., dissenting)).
The rationale for treating remanded cases differently from collateral attacks is not unassailable, then, but it is a principled distinction that recognizes a legitimate prudential concern. As a result, the fact that Mr. Lanphier's case was properly before the trial court on remand does make a difference. As made clear in Kilgore, in the remand context, reviewability and finality depend on whether the trial court elects to exercise its discretion. If it does, the trial court's exercise of discretion revives the pendency of the appeal and thereby renders the judgment nonfinal. Kilgore, 167 Wn.2d at 38. Accordingly, while Mr. Lanphier has no right on remand to retroactive application of Mulholland, he is entitled to have the trial court exercise its discretion to entertain the issue and, if it does, Mulholland will apply.
Although the parties did not address the issue, it is arguable that Mulholland did not create a new rule. Retroactivity analysis does not apply where a petitioner basis his challenge on an intervening decision that construes the meaning of a statute. There is no "retroactive" effect of a court's construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment. In re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 436, 842 P.2d 950 (1992); and see Evans, 154 Wn.2d at 448 (identifying Vandervlugt as an example of a case in which retroactive application would be authorized or required as a matter of state law even where Teague would not support retroactive application).
In holding that the appellate rules recognize this discretion on the part of trial courts to apply new rules on remand that could not be a basis for collateral attack, we are not opening the floodgates to postconviction challenges. Not only will challenges on remand arise in a much smaller number of cases, but the trial court always enjoys discretion not to consider the challenge.
Accordingly, in light of controlling interpretations of RAP 2.5(c)(1), the trial court enjoyed discretion at the time of Mr. Lanphier's resentencing to entertain his argument that, with clarification of former RCW 9.94A.390 by Mulholland, it should impose a mitigated exceptional sentence. Its error in assuming that it could not constitutes an abuse of discretion requiring remand. Upon remand the trial court may, but need not, entertain evidence and argument in support of a mitigated exceptional sentence.
III
We next address Mr. Lanphier's contention that the trial court erred in imposing a five-year firearm enhancement to each count when, given the form of special verdict used, the jury found only use of a deadly weapon. Discretion to consider this alleged Blakely/Recuenco error requires a different analysis than the Mulholland issue.
We previously rejected Mr. Lanphier's arguments that the special verdicts finding use of a deadly weapon do not support the court's judgment imposing firearm enhancements. Since our determination was law of the case, only we, not the trial court, are authorized to review the propriety of our earlier decision. RAP 2.5(c)(2); Kilgore, 167 Wn.2d at 38 n. 8 (quoting State v. Schwab, 163 Wn.2d 664, 676, 185 P.3d 1151 (2008)).
We decline to revisit our earlier decision on the basis of our authority to do so "where justice would best be served" under RAP 2.5(c)(2), a rule that has been relied upon for extraordinary circumstances. E.g., Folsom v. County of Spokane, 111 Wn.2d 256, 759 P.2d 1196 (1988) (holding in prior appeal was clearly erroneous resulting in a manifest injustice); Eserhut v. Heister, 62 Wn. App. 10, 14, 812 P.2d 902 (1991) (earlier decision could "lead to pernicious results in the workplaces of this state"), review denied, 118 Wn.2d 1009 (1992); Chem. Bank v. Wash. Pub. Power Supply Sys., 102 Wn.2d 874, 886, 691 P.2d 524 (1984) (prior decision reconsidered in light of "complexity of the statutory authority issue and the importance of this litigation to thousands of individuals"), cert. denied, 471 U.S. 1065, 1075 (1985). The legislature and the Supreme Court have addressed, by statute and rule, the standards and conditions under which a criminal defendant may challenge his conviction and sentence. Mr. Lanphier may file a further PRP and have his request for relief determined by those standards and conditions applicable to other similarly-situated individuals, including, insofar as it applies. In re Personal Restraint of Skylstad, 160 Wn.2d 944, 162 P.3d 413 (2007).,
It is within our discretion to treat Mr. Lanphier's arguments on appeal as a PRP; indeed, it is sometimes the State that urges appellate courts to do so, as a way of preserving judicial resources. See State v. Smith, 144 Wn. App. 860, 184 P.3d 666 (2008) (citing cases and noting that it is often the interest of the defendant that requires caution lest the petitioner compromise his ability to raise other error through an inadvertent PRP). We recognize, however, that the Washington Supreme Court's impending decision in Scott, 149 Wn. App. 213, is likely to clarify issues raised by any petition filed by Mr. Lanphier.
In his briefing on appeal, Mr. Lanphier identifies a third alleged error based on In re Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d 798 (1998); State v. Price, 103 Wn. App. 845, 14 P.3d 841 (2000), review denied, 143 Wn.2d 1014 (2001); and In re Personal Restraint of Greening, 141 Wn.2d 687, 9 P.3d 206 (2000), which he contends stand for the proposition that his six five-year firearm enhancement penalties should have run concurrently rather than consecutively. Br. of Appellant at 10-12. Charles construed former RCW 9.94A.310(3)(e) (1995) to provide that a firearm enhancement runs consecutively to the sentence for the associated crime, but that multiple firearm enhancements do not necessarily run consecutively to one another. 135 Wn.2d at 253. However Price construed former RCW 9.94A.400 to require that in the case of "serious violent offenses" (present here, although not present in Charles) multiple firearm enhancements do run consecutively to each other. 103 Wn. App. at 861. None of the decisions support a challenge to Mr. Lanphier's sentence. And see Flett, 98 Wn. App. at 806 (the enhancement is added to the base sentence to reach a single presumptive offense; and in the case of serious violent offenses, the ambiguity in Charles does not arise). We also note that a very similar issue was raised in Mr. Lanphier's first personal restraint petition (Court of Appeals Cause 18376-9-III), dismissed by us in December 1999 and rejected for review by the Supreme Court in May 2000. CP at 52, 55.
We reverse in part and remand for proceedings consistent with this opinion.
A majority of the panel has determined that 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.
KULIK, C.J. and SWEENEY, J., concur.