STATE v. TUCKER

THOMPSON, J.[fn*] [fn*] Judge Philip J. Thompson is serving as judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.

A jury found Mark Evan Tucker guilty of rendering criminal assistance. The jury was given a special verdict form in which it found that the standard range sentence of 22 to 29 months was clearly too lenient in light of his unscored misdemeanor history. At sentencing, according to the prosecutor, the correct standard range sentence was 51 to 60 months. The trial judge ordered a sentence of 60 months.

On appeal, Mr. Tucker first contends there was insufficient evidence presented of his prior felony convictions used to calculate his offender score. Second, he asserts that it was improper to submit to the jury the question of whether the standard range of 22 to 29 months was clearly too lenient. Finally, he argues that the sentencing court's consideration of a sentencing range of 51 to 60 months was inappropriate under the law of the case doctrine. We find no reversible error and affirm.

FACTS

Mr. Tucker and James Moran, both longtime drug users, met on the streets of Portland, Oregon, during the summer of 2005. Mr. Moran was wanted by police for the July 2004 murders of his in-laws in Kennewick, Washington. Mr. Tucker agreed to drive Mr. Moran to Arkansas. They embarked on a crime-filled, drug-involved cross country drive, during which Mr. Moran's behavior became more bizarre and erratic. Mr. Tucker and Carrie Blackford, a passenger they had picked up in Pocatello, Idaho, became increasingly frightened after Mr. Moran threatened them with a gun he had picked up on the journey. Finally upon arriving in the Tri-Cities, Mr. Moran robbed and murdered two women.

Mr. Moran gave several different versions of what occurred in the house where the women were murdered, including that he had shot a dog. Mr. Tucker drove the three away from the scene and headed back to Portland.

While in Portland, Mr. Tucker, with the help of a friend, called the authorities to report Mr. Moran's location. As the police closed in Mr. Moran fatally shot himself in the head.

After a nine-day trial Mr. Tucker was found guilty of rendering criminal assistance in the first degree. Immediately following the verdict the court instructed the jury that it would be required to determine whether, taking into account Mr. Tucker's prior unscored misdemeanor criminal history, his presumptive sentencing range of 22 to 29 months was clearly too lenient. The jury returned a special verdict finding the range was too lenient.

At the sentencing five weeks later, the State asserted that the standard range for Mr. Tucker was actually 51 to 60 months. After argument and allocution, the court sentenced Mr. Tucker within the standard range to 60 months.

ANALYSIS

Mr. Tucker asserts that there is insufficient evidence to establish the criminal history upon which his sentence was based. RCW 9.94A.500(1) requires that the court conduct a sentencing hearing "[b]efore imposing a sentence upon a defendant." "[T]he SRA [Sentencing Reform Act of 1981, chapter 9.94A RCW] requires that sentencing courts determine a defendant's criminal history based on his or her prior convictions and the level of seriousness of the current offense." State v. Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004). The State bears the burden to prove the existence of prior convictions by a preponderance of the evidence as well as the comparability of any out-of-state convictions. State v. Ford, 137 Wn.2d 472, 482-83, 973 P.2d 452 (1999). "If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record." RCW 9.94A.500(1).

A defendant's affirmative acknowledgment that his prior convictions are properly included in his offender score satisfies SRA requirements. Ford, 137 Wn.2d at 483 (citing former RCW 9.94A.370(2) (1999), recodified as RCW 9.94A.530(2) (2001)). And that is what occurred here. Moreover, Mr. Tucker does not argue that the offender score was incorrect. There is nothing in the record that would make it possible for this court to determine whether calculation of the offender score was or was not correct. If in fact a valid issue exists with regard to the offender score, the proper procedure to address it is to file a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record"). Mr. Tucker has presented no evidence to support his claim that his offender score was miscalculated. His direct appeal as to that issue fails for lack of factual support for his argument.

Next, Mr. Tucker challenges the special verdict. A trial court's decision regarding the length of a sentence if it is within the standard range cannot be appealed because there can be no abuse of discretion as a matter of law. State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986); see RCW 9.94A.585(1) ("A sentence within the standard sentence range, under RCW 9.94A.510 or 9.94A.517, for an offense shall not be appealed."). "So long as a court imposes a sentence within the presumptive range and a defendant has not alleged that any mitigating factors exist, a court cannot be said to have abused its discretion, since it has neither exercised nor refused to exercise discretion." State v. Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997). "[RCW 9.94A.585(1)] does not preclude a challenge to the procedure by which a sentence within the standard range is imposed, so long as a defendant can show either that the sentencing court refused to consider information mandated by [RCW 9.94A.500] or that the defendant timely and specifically objected to consideration of certain information and no evidentiary hearing was held." Id.

Here, the jury merely determined that a standard range of 22 to 29 months was clearly too lenient. But because the trial court did not order a sentence outside the standard range of 51 to 60 months, the jury's determination was of no consequence.

Finally, Mr. Tucker asserts that the law of the case doctrine required the court to consider the 22-to 29-month standard range considered by the jury. "In its most common form, the law of the case doctrine stands for the proposition that once there is an appellate holding enunciating a principle of law, that holding will be followed in subsequent stages of the same litigation." Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005). The doctrine also encompasses the principle that unchallenged jury instructions are treated as the applicable law for purposes of appeal. Id. (citing State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998)).

In criminal cases applying the law of the case to jury instructions, the State assumes the burden of proving otherwise unnecessary elements of the offense when such elements are included in the instruction without objection. Hickman, 135 Wn.2d at 102.

The defendant invokes the doctrine to challenge the sufficiency of the evidence to support the extra element. Id. at 103. Mr. Tucker does not challenge the sufficiency of the evidence to support the jury's finding but attempts to commit the court to finding the correct range is 22 to 29 months because that is the range submitted to the jury. As we previously noted herein, under the facts outlined above, the special jury verdict became irrelevant once the sentencing range was corrected to 51 to 60 months. It remains so notwithstanding defendant's argument regarding the law of the case. The doctrine has not been applied by our courts in any situation similar to the one presented here. We decline to extend the doctrine in the manner suggested by Mr. Tucker.

Affirmed.

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, A.C.J. and Brown, J., Concur