STATE v. POSTON (2007)

PUBLISHED IN PART

¶ 1 As part of a plea agreement, Philip Poston and the State made “an agreed recommendation” that the trial court should sentence Poston to 180 months confinement for the crimes to which he pleaded guilty.   He now challenges the exceptional 180 month sentence that the court imposed after accepting his plea.   He claims that the sentence violates Blakely v. Washington ¹ because a judge found facts by a preponderance of the evidence to support the sentence.   However, he also expressly declines to challenge his plea agreement.   We hold that Poston cannot challenge his exceptional sentence without also challenging his plea agreement.   Because he fails to challenge that agreement, he has no basis to argue that the exceptional sentence to which he expressly agreed is invalid.

¶ 2 He also asserts other grounds for invalidating or modifying his sentence.   None are persuasive.   We affirm.

¶ 3 This is Poston's second appeal.   In his first appeal,² he challenged his conviction based on his Alford ³ plea to intimidating a witness.   In 2004, this court held there was no factual basis for that plea, reversed that conviction, and remanded to the trial court to allow Poston to withdraw his guilty plea to that count.   This court also directed the trial court to amend the judgment and sentence to correct certain errors in sentencing conditions that the State conceded were erroneous.   Finally, this court affirmed the convictions for all other counts, including the counts that are at issue in this appeal.

¶ 4 Before the first appeal, the State charged Poston in a Fourth Amended Information with 16 counts of first degree incest, one count of intimidating a witness, and one count of unlawful imprisonment.   In February 2003, Poston pleaded guilty to 16 counts of incest.   He entered Alford pleas to one count of incest as well as to the counts of intimidating a witness and unlawful imprisonment.

¶ 5 The plea agreement that Poston signed expressly provides, in part, that “At sentencing, the state will recommend that [Poston] be ordered to serve 180 months confinement ․,” and further states, “This is an agreed recommendation.” ⁴

¶ 6 Both Poston and his counsel signed the separate findings and conclusions supporting that exceptional sentence.   The conclusions of law state, in part:

1.  The parties have stipulated that there are substantial and compelling reasons for an exceptional sentence of 15 years confinement.

. . .

6. Any of the five aggravating factors above constitute[s][a] substantial and compelling reason[ ] justifying the exceptional sentence of 15 years confinement.5

¶ 7 The trial judge accepted Poston's plea.   At sentencing, the judge imposed 120 month exceptional sentences for all first degree incest counts except one.   It imposed a 60 month sentence for that one count of incest and ordered that it be served consecutively to one of the other 120 month sentences for first degree incest.⁶  These consecutive sentences are to be served concurrently with all remaining counts.   The court also imposed standard range sentences for the intimidating a witness and unlawful imprisonment counts.

¶ 8 Poston appealed, and this court affirmed the convictions for all counts except witness intimidation.   This court reversed that conviction and remanded to the trial court with the instructions we described previously in this opinion.⁷

¶ 9 In May 2005, the trial court conducted the hearing on remand that this court directed.   At the conclusion of the hearing, the court entered an amended judgment and sentence.⁸

¶ 10 Poston appeals for the second time.

EXCEPTIONAL SENTENCE

 ¶ 11 Poston argues that the trial court violated his constitutional right to trial by jury by imposing an exceptional sentence based on facts to which he did not stipulate in the plea agreement or that were not determined by a jury beyond a reasonable doubt.   Because Poston pleaded guilty to the incest charges, stipulated to the exceptional sentence that the court imposed, and does not challenge the validity of his plea agreement, we hold that there has been no violation of his constitutional rights under Blakely and its progeny.

¶ 12 In Apprendi v. New Jersey, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ⁹  The decision is based on the Sixth Amendment right to trial by jury.¹⁰

 ¶ 13 The Supreme Court clarified the Apprendi decision in Blakely, concluding that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” ¹¹  The “ ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” ¹²  “Blakely applies only to convictions or direct appeals that were not final at the time it was announced, and Blakely cannot be applied retroactively on collateral review.” ¹³

¶ 14 A Washington court may impose an exceptional sentence outside of the standard range if it concludes “there are substantial and compelling reasons justifying an exceptional sentence.” ¹⁴  In order to impose an exceptional sentence, the court must set forth reasons for its decision in written findings of fact and conclusions of law.¹⁵  RCW 9.94A.535(2) and (3) provide a nonexclusive list of factors justifying an upward departure from a standard range sentence.

¶ 15 The state supreme court has held that a stipulation to an exceptional sentence is enough to constitute a substantial and compelling reason to justify an exceptional sentence, provided the sentence is authorized by statute and the findings of fact show the sentence imposed is consistent with the goals of the Sentencing Reform Act of 1981.¹⁶

¶ 16 The Blakely court acknowledged that when a defendant pleads guilty and stipulates to an exceptional sentence, a jury need not find facts supporting the exceptional sentence:

But nothing prevents a defendant from waiving his Apprendi rights.   When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.17

¶ 17 In State v. Hughes, our supreme court concluded that Blakely did not render Washington's exceptional sentencing provisions facially unconstitutional.¹⁸  The court noted that because the legislature had not yet created a remedy for Blakely violations to empanel a jury on remand in order to find the necessary facts to support the exceptional sentence, it must remand for resentencing within the standard range.¹⁹

 ¶ 18 Blakely is at issue in this case.   That is because this case was pending on direct review in this court at the time that Blakely was handed down by the United States Supreme Court in June of 2004.²⁰  But we may affirm on any basis supported by the record.²¹

¶ 19 The issue is whether the trial court engaged in judicial fact finding to support the exceptional sentence that it imposed.   We hold that it did not.

Here, the Statement of Defendant on Plea of Guilty to Sex Offense provides in relevant part as follows:

. . .

6 (g) The prosecuting attorney will make the following recommendation to the judge:

Upon the court's acceptance of my plea of guilty as charged to 16 counts of Incest in the First Degree;  1 Count of Intimidating a Witness;  and 1 Count of Unlawful Imprisonment, the state will agree to not file any additional criminal charges against me, arising out of the incidents described in the police reports prepared in connection with this case, a copy of which I have read.   At sentencing, the state will recommend that I be ordered to serve 180 months confinement, that I be placed on community custody for a period of 36 months․ This is an agreed recommendation.   It is my understanding that the court will order a Pre-Sentence Investigation Report and that the State reserves its right to make further recommendations based on receipt of the Pre-Sentence Investigation Report.22

¶ 20 In State v. Ermels, the state supreme court held that Ermels could not challenge either his stipulation to facts supporting his exceptional sentence or his waiver to the right of appeal in a plea agreement without challenging the entire agreement.²³  In that case, Ermels stomped on the head of an unconscious man, who later died.   The initial charge was first degree assault, which would have had a standard range sentence of 93-123 months upon his conviction.   In order to avoid the risk of conviction on that charge, he pleaded guilty to second degree manslaughter, which had a shorter standard range than the assault charge.   As part of his plea agreement, he stipulated to facts supporting an exceptional sentence based on victim vulnerability.²⁴  He also stipulated that there was a legal basis for an exceptional sentence.   The prosecutor recommended a 10 year exceptional sentence.   The court imposed an exceptional sentence of 7.5 years (90 months).²⁵

¶ 21 The United States Supreme Court decided Blakely in June 2004.   Following the issuance of that decision, Ermels argued on appeal that his exceptional sentence was invalid based on that case.   Although he did not argue that his exceptional sentence relied on improper Blakely findings, he argued that the waivers in his plea agreement were not valid.

¶ 22 Our state supreme court disagreed.   Citing In re Breedlove,²⁶ the court noted that “a defendant's stipulation to an exceptional sentence, made as part of a valid plea agreement, may be considered a substantial and compelling reason that justifies imposition of an exceptional sentence.” ²⁷  The court went on to state that “when a defendant has stipulated to an exceptional sentence, he waives his right to appellate review of the sentence.” ²⁸  Significantly, the court reaffirmed that while the trial court in that case found additional aggravating factors, which implicitly violated Blakely, they were not necessary given Ermels' stipulations.   All that is required is that the reviewing court must be satisfied that the trial court would have imposed the same sentence based on valid factors.²⁹

 ¶ 23 Here, Poston, his counsel, and the State's counsel signed the written findings and conclusions of the trial court in which Poston expressly agreed that “The parties have stipulated that there are substantial and compelling reasons for an exceptional sentence of 15 years confinement.”   Under Breedlove, Poston's stipulation to an exceptional sentence is sufficient in and of itself to constitute a substantial and compelling reason under the SRA.

¶ 24 More importantly, we note that Poston also expressly agreed that he should serve 180 months for his crimes.   There is no other reasonable way to read the provisions of his Statement of Defendant on Plea of Guilty to Sex Offense.   Our reading is reinforced by the fact that Poston does not challenge his plea agreement.

¶ 25 As in Ermels, Poston received substantial benefits from his plea.   The record indicates that in at least two of the counts of incest, he threatened his victim with a weapon.³⁰  Moreover, the charges against Poston prior to the plea included, among others, rape and 30 counts of incest.   In sum, the plea to lesser and fewer charges and the agreed recommendation to 180 months of confinement permitted Poston to benefit from his plea agreement with the State.

¶ 26 This leaves the question of whether the trial court engaged in improper judicial fact finding in violation of Blakely.   As in Ermels, the narrow question is whether in light of Poston's stipulation he may rely on Blakely to invalidate his exceptional sentence.

¶ 27 Here, the trial judge concluded that any of the five aggravating factors constitutes substantial and compelling reasons for an exceptional sentence of 15 years:

1.  The parties have stipulated that there are substantial and compelling reasons for an exceptional sentence of 15 years confinement.

2. The defendant's conduct during the commission of the current offense manifested deliberate cruelty and intimidation to the victim.

3. The offenses were part of an ongoing pattern of sexual and psychological abuse of the same victim under the age of 18 years, manifested by multiple incidents over a prolonged period of time.

4. The operation of the multiple offense policy of RCW 9A.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of the Sentencing Reform Act, as expressed in RCW 9.94A.010;  and

5.  The victim was particularly vulnerable due to the fact she had recently moved from the Philippines to America.   The victim was dealing with language barriers and isolation issues.31

¶ 28 In Ermels, the state supreme court concluded that not every aggravating factor must be valid to uphold an exceptional sentence, provided the reviewing court is satisfied that the same sentence would have been imposed based on valid factors.   Here, regardless of the arguable invalidity of the factors listed at paragraphs 2-5, the stipulation in paragraph 1 is valid.   And the court expressly stated that it would have imposed the 180 month sentence on the basis of any of the listed factors.³²  We are satisfied the court would have imposed the same sentence based solely on the stipulation to the 180 month exceptional sentence recommendation, a valid and independent factor.   Because the sentence is based on this stipulation, the court did not engage in prohibited fact finding in violation of Blakely when it imposed this exceptional sentence.

¶ 29 The Ermels court relied on State v. Turley, and noted that even where the plea agreement involves multiple counts or charges, the agreement is indivisible where the charges were made at the same time, described in one document, and accepted in a single proceeding.³³  Ermels' agreement was indivisible under Turley because he pleaded guilty to a single charge and agreed that there were both factual and legal bases for an exceptional sentence on that charge, and did so in exchange for a less serious charge with a lower standard range.³⁴

 ¶ 30 Similarly here, Poston pleaded guilty to multiple charges at the same time, in a single document, in a single proceeding.   He agreed to the reduced charges in exchange for the State not filing additional criminal charges and jointly recommending a 180 month sentence.   Poston's stipulation to the exceptional sentence is indivisible from his plea agreement.   Because he does not challenge his plea agreement, he cannot challenge his stipulation to the exceptional sentence.

¶ 31 Poston makes three basic arguments to distinguish his case from Ermels.   None requires us to reverse the exceptional sentence in this case.

¶ 32 First, he argues that Ermels stipulated to the factual and legal bases for an exceptional sentence.   Moreover, Ermels did not argue his sentence was based on unconstitutional fact finding.

¶ 33 Here, Poston did not stipulate to the aggravating factors used to support his exceptional sentence.   Poston acknowledges that he agreed with the State's 180 month sentencing recommendation.   He then points to the fact that the sentencing court considered information in the DOC report and testimony at the sentencing hearing in 2003.   He claims the court used these resources, to which he objected, to impose the exceptional sentence.

¶ 34 As we have already explained in this opinion, he stipulated to 180 months of confinement as part of his plea agreement.   Stipulation to the aggravating factors was not necessary, particularly since he does not challenge the existence of such factors.   The stipulation to the exceptional sentence based on one valid factor is sufficient under Ermels.   That is what happened here.

 ¶ 35 Poston notes that the findings and conclusions in this case do not include a statement that “the sentence is consistent with the purposes of the SRA,” as Breedlove requires.   While there is no such express finding in the documents in the record, we conclude that such a finding is implicit in the record before us.   Thus, there is no reason to remand for an express finding in this case.³⁵

¶ 36 Second, Poston emphasizes that he does not challenge his plea agreement.   He goes on to argue that the State cannot argue that Poston's plea agreement included a stipulation to a legal or factual basis for his plea.   He reasons that the logic of Ermels does not apply.   We again disagree.

¶ 37 He jointly recommended to the court that an exceptional sentence of 180 months was proper.   Such a stipulation is a substantial and compelling reason under the SRA for an exceptional sentence.   The logic of Ermels applies here although the facts of the two cases are not in complete alignment.

¶ 38 Third, Poston argues that he did not waive his right to appeal.   Ermels did.   Nevertheless, Poston made a joint recommendation to the court that 180 months of confinement was appropriate under the circumstances of this case.   Without challenging his plea, he cannot now argue that his right to appeal includes the right to set aside the sentence based exactly on his joint recommendation.

¶ 39 State v. Suleiman,³⁶ on which Poston also relies, is distinguishable.   There, Suleiman pleaded guilty to three counts of vehicular assault.   In the plea agreement, Suleiman stipulated to the “real and material facts as written in the certification for determination of probable cause and the prosecutor's summary without stipulating that those facts are a legal basis for an exceptional sentence.” ³⁷  The plea agreement stated that the prosecutor planned to recommend a 36 month exceptional sentence followed by 18-36 months community custody.   But he did not stipulate to an exceptional sentence of any length.   The trial court imposed an exceptional sentence based on several grounds, including that the defendant knew or should have known that the victim was particularly vulnerable.³⁸

¶ 40 This court upheld the sentence, concluding that the trial court properly found that Dwyer, the victim, was particularly vulnerable.   Because this court concluded that victim vulnerability was sufficient to support the exceptional sentence, it did not address the other reasons given by the trial court.³⁹

¶ 41 The state supreme court reversed, reasoning that in order to justify the exceptional sentence Suleiman would have had to stipulate that he knew or should have known of the victim's particular vulnerability, and that vulnerability was a substantial factor in the crime.   He did not stipulate to these facts.   The court noted that although the documents in the certification for probable cause and the prosecutor's summary imply that he knew or should have known that Dwyer was particularly vulnerable, they do not say so specifically, nor do they state that vulnerability was a substantial factor in the crime.⁴⁰  The court concluded that Suleiman's exceptional sentence violates Blakely.

¶ 42 Here, in contrast, there was no fact finding for purposes of the 180 month exceptional sentence that the court imposed based on Poston's stipulation to that sentence.   And Poston also expressly agreed that there are substantial and compelling reasons to support the exceptional sentence.   The trial judge imposed the exact exceptional sentence jointly recommended by the parties.   It is irrelevant for these purposes that Poston did not also stipulate to the underlying facts supporting the exceptional sentence in his case.

¶ 43 Poston also cites State v. Hagar ⁴¹ to support his position.   That case is also distinguishable.   There, Hagar pleaded guilty to three counts of first degree theft and stipulated to the facts set forth in the certification of probable cause, the prosecutor's summary, and the facts set forth in an appendix to the agreement.   The plea agreement informed Hagar that the State would be seeking an exceptional sentence, but that the judge would be required to sentence within the standard range unless the judge found substantial and compelling reasons to depart from it.   The judge imposed the exceptional sentencing, finding that the crimes constituted a “major economic offense.” ⁴²  The supreme court reversed, reasoning that although Hagar stipulated to certain facts, he did not stipulate that the crimes constituted a “major economic offense.”   The judge engaged in improper judicial fact finding in violation of Blakely.⁴³

¶ 44 Unlike Hagar, Poston stipulated to the exceptional sentence.   This alone was sufficient for the trial court to rely on when finding substantial and compelling reasons to impose an exceptional sentence.

¶ 45 The remaining issues of this opinion are not of precedential importance.   Accordingly, pursuant to RCW 2.06.040, the remainder of this opinion is not published.

¶ 46 We affirm the judgment and sentences.

CONTINUANCE

¶ 47 Next, Poston argues that the trial court abused its discretion in denying his request for a continuance at the resentencing hearing.   We disagree.

¶ 48 Whether a motion for a continuance should be granted or denied is within the trial court's discretion.44  In exercising its discretion, a court may consider:

[T]he necessity of reasonably prompt disposition of the litigation;  the needs of the moving party;  the possible prejudice to the adverse party;  the prior history of the litigation, including prior continuances granted [to] the moving party;  any conditions imposed in the continuances previously granted;  and any other matters that have a material bearing upon the exercise of the discretion vested in the court.45

A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.46

¶ 49 After Poston's first appeal, this case was set for resentencing in order to allow Poston to withdraw his guilty plea for the count of intimidating a witness and to strike the one condition that was mistakenly added to the judgment and sentence.   The attorney who had represented Poston during his plea negotiations was not present.   Different counsel appeared on behalf of Poston and requested a continuance to allow original counsel to be present.   The attorney informed the court that he was not prepared to proceed with resentencing, he did not have Poston's file with him, and counsel claimed it would be in Poston's best interests to have his original attorney present.   The State opposed the motion.

¶ 50 The court denied the continuance, finding no prejudice to Poston.   It reasoned that all of the pending matters were in Poston's favor.   The court had taken the action directed by this court by striking the improper condition and allowing Poston to withdraw his plea of guilty for the count of intimidating a witness.

¶ 51 This was not an abuse of discretion.   Poston fails to show any prejudice.

EFFECTIVE ASSISTANCE OF COUNSEL

¶ 52 Alternatively, Poston argues that he did not receive effective assistance of counsel at the hearing on remand.   Specifically, he argues that the absence of counsel familiar with his case from the hearing requires vacation of the amended judgment and sentence.   We do not agree.

¶ 53 The Sixth and Fourteenth Amendments to the United States Constitution and article 1, section 22 of the Washington Constitution guarantee a defendant the right to representation and due process of law.47  The constitution guarantees the right to counsel at all critical stages of a criminal proceeding, including sentencing.48  When counsel is totally absent or prevented from assisting the accused during a critical stage of the proceeding, it is presumed that there was a denial of the Sixth Amendment right to counsel. 49  However, when represented by counsel, the accused must show prejudice unless given the circumstances, the likelihood any lawyer could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct at trial.50

¶ 54 Under the rule of Strickland v. Washington,51 one claiming the denial of the Sixth Amendment right to effective assistance of counsel has the burden to demonstrate that counsel's performance fell below an objective standard of reasonableness, and the deficient performance prejudiced the defendant.52  Generally, the claim fails if either prong of this test is absent.53

¶ 55 Here, for purposes of our analysis, we assume without deciding that there was deficient performance by substitute counsel at the hearing on remand.   He did not have his client's file, was not familiar with the case, and did not actively participate in the matters to which the hearing was devoted.

¶ 56 Nevertheless, Poston has failed to show prejudice.   As the State correctly points out, the purpose of the hearing was to allow Poston to withdraw his guilty plea to the charge that this court decided had no factual basis.   He withdrew his plea to that charge, the State dismissed the charge, and the court amended the judgment and sentence accordingly.

¶ 57 Poston's real complaint rests on the assumption that more was at issue.   Assuming for purposes of argument that the hearing should also have considered matters related to Blakely, Poston has shown no prejudice by any presumed deficient performance of his counsel.   This court had already denied his motion for reconsideration based on that case following the decision in the first appeal.   And we now deny his second appeal to the extent it relies on Blakely.   There is no prejudice and thus no basis for an ineffective assistance of counsel claim.

¶ 58 Poston relies on Pers. Restraint of Morris 54 and Powell v. Alabama.55  Those cases are distinguishable.

¶ 59 In Morris, the defendant pleaded guilty to one count of second degree rape.56  At sentencing, he was represented by a different attorney who was not familiar with the rape case.   The court of appeals granted Morris' personal restraint petition, concluding that although he was not entitled to a specific attorney at sentencing, he was entitled to one familiar with his case. 57  The court vacated the sentence for rape and remanded for resentencing so Morris could have his attorney for the rape charge present.

¶ 60 In Powell, the defendants were charged with rape, and the trial court appointed all members of the bar to arraign them and anticipated that they would continue to help the defendants if no counsel appeared.   The defendants were never asked if they had counsel, were able to employ counsel, or wished to have counsel appointed.   At the time of trial, no lawyer had been named to represent the defendants, and no investigation was made on their behalf.   An out-of-state lawyer offered to help them, but stated that he had not prepared the case and was unfamiliar with local procedure. The defendants were found guilty.

¶ 61 The United States Supreme Court reversed the convictions, holding that “such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard.” 58  Without examining counsel's actual performance, the court concluded that under these circumstances the likelihood that counsel could have performed as an effective adversary was so remote that the trial was inherently unfair.59

¶ 62 Unlike Morris and Powell, Poston was effectively represented by counsel throughout his plea agreement and during sentencing.   It was only during the hearing on remand, where different counsel was present, that counsel was not familiar with his case.   However, the hearing was solely for the purposes of complying with this court's decision by correcting the judgment and sentence and allowing Poston to withdraw his plea on one count.   There was no prejudice.

¶ 63 In re Dependency of G.A.R.60 is also distinguishable.   In that case, counsel was found ineffective when the mother left the courtroom during a termination hearing, and counsel stipulated to the admission of highly damaging written reports by non-testifying experts.   The reports all came into court by way of witnesses who were not experts in the relevant fields and could not be cross-examined as to the substance of the reports.   As a result, the mother was denied her constitutional right to cross-examination and could not adequately challenge the State's case.61

¶ 64 In contrast here, Poston was never denied his constitutional rights.   He received effective assistance of counsel.

ALLOCUTION

¶ 65 Poston argues that he was denied his statutory and due process right to allocution at the hearing on remand following his first appeal.   Based on the circumstances of this case, we hold that any error was harmless.

¶ 66 “Allocution is the right of a criminal defendant to make a personal argument or statement to the court before the pronouncement of [the] sentence.” 62  The denial of the right to allocution is neither a constitutional nor jurisdictional error and it is not a fundamental defect that inherently results in a complete miscarriage of justice.63  A minimal due process right to allocution exists with respect to a revocation hearing. 64

¶ 67 In State v. Canfield, the supreme court considered three consolidated cases implicating allocution.   Two of the defendants violated terms of their suspended sentences and one violated the terms of his community placement.   In its analysis, the court drew a distinction between a revocation hearing and sentencing, noting that RCW 9.94A.500(1) applies to sentencing. 65  Nevertheless, it concluded that a limited due process right to allocution applies to revocation hearings.66

¶ 68 Here, a revocation hearing is not at issue.   Moreover, we need not decide whether there is a right of allocution for the hearing on remand of the prior appeal in this case.   Assuming without deciding that such a limited right exists for the hearing on remand here, any error was harmless.

¶ 69 In this second appeal, Poston invites our attention to the record in his prior appeal.   From our examination of this court's prior decision and that record, it is clear that the hearing on remand was for limited purposes.   Specifically, it was to allow Poston to withdraw his plea and to amend the judgment and sentence to reflect that action.   It was also to correct other errors not relevant to this appeal.   At the hearing, the following exchange between Poston and the trial judge occurred after the court entered the amended judgment and sentence that Poston and counsel for the State signed:

The Defendant:  Your Honor, I'm sorry, but we have some legal issues here also.

The Court:  Let's hear what Mr. Poston has to say.

The Defendant:  I'm sorry.   State-Blakely v. Washington.   Exceptional sentence only by jury trial or stipulation;  however, State v. Lange says stipulation to exceptional sentence beforehand does not matter.   So I'm looking here for a Blakely decision here.

The Court:  It's not before me, and I'm not going to address it.   That is all.67

¶ 70 Poston now argues that the court neither afforded him an opportunity to be heard on the Blakely issue before entering the amended judgment nor allowed him to develop his Blakely argument after the judge asked him what he wanted to say.

¶ 71 First, we note from our examination of the record in his prior appeal that Poston timely moved for reconsideration of this court's prior decision on the basis of Blakely on July 30, 2004.   This court denied that motion on January 31, 2005, prior to issuance of the mandate.   Thus, the impact of Blakely on this case was fully briefed and decided by this court prior to the hearing on remand in superior court.  RAP 12.2 provides:

The appellate court may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require.   Upon issuance of the mandate of the appellate court as provided in rule 12.5, the action taken or decision made by the appellate court is effective and binding on the parties to the review and governs all subsequent proceedings in the action in any court, unless otherwise directed upon recall of the mandate as provided in rule 12.9, and except as provided in rule 2.5(c)(2).   After the mandate has issued, the trial court may, however, hear and decide postjudgment motions otherwise authorized by statute or court rule so long as those motions do not challenge issues already decided by the appellate court.68

¶ 72 Accordingly, there was nothing left for the trial court to address on this issue at the hearing on remand once this court addressed the issue before remand.

¶ 73 Second, Poston has again raised Blakely in this second appeal. We have rejected his arguments.   Consequently, he fails to show how the trial court's denial of an arguably limited right of allocution at the hearing on remand was not harmless error.   We conclude any error was harmless.

¶ 74 For these reasons, we conclude that Poston is not entitled to any relief based on this claim to the right of allocution at the hearing on remand.

STATEMENT OF ADDITIONAL GROUNDS

¶ 75 Finally, Poston asserts additional challenges to his sentence in his Statement of Additional Grounds for Review.   He challenges several sentencing conditions.   He challenged other sentencing conditions in his first appeal, but not these.   These conditions were not modified on remand.   He cannot challenge sentencing conditions in this second appeal that existed at the time of the first appeal.69

We affirm the judgment and sentences.

FOOTNOTES

1.   542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

2.   State v. Poston, No. 52249-3-I, 2004 WL 1559820 (July 12, 2004).

3.   North Carolina v. Alford, 400 U.S. 25, 36, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

4.   Clerk's Papers at 56.

5.   Clerk's Papers at 14.

6.   Clerk's Papers at 8-9.

7.   Poston, 122 Wash.App. 1024, 2004 WL 1559820, at *3.

8.   Clerk's Papers at 3-21.

9.   530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

10.   U.S. Const. amend.   VI.

11.   Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis added).

12.   Id. at 303-04, 124 S.Ct. 2531 (emphasis added).

13.   State v. Hagar, 158 Wash.2d 369, 373, 144 P.3d 298 (2006).

14.   RCW 9.94A.535.

15.   Id.

16.   State v. Ermels, 156 Wash.2d 528, 536, 131 P.3d 299 (2006) (citing In re Pers. Restraint of Breedlove, 138 Wash.2d 298, 300, 979 P.2d 417 (1999)).

17.   Id. at 537, 131 P.3d 299 (citations omitted).

18.   State v. Hughes, 154 Wash.2d 118, 134, 110 P.3d 192 (2005).

19.   Id. at 151-52, 156, 110 P.3d 192.

20.   State v. Evans, 154 Wash.2d 438, 444, 114 P.3d 627 (2005).

21.   State v. Villarreal, 97 Wash.App. 636, 643, 984 P.2d 1064 (1999).

22.   (Emphasis added.)

23.   156 Wash.2d at 541, 131 P.3d 299.

24.   Id. at 533, 131 P.3d 299.

25.   Id. at 534, 131 P.3d 299.

26.   138 Wash.2d 298, 979 P.2d 417 (1999).

27.   Ermels, 156 Wash.2d at 539, 131 P.3d 299.

28.   Id.

29.   Id.

30.   Clerk's Papers at 106-07.

31.   Clerk's Papers at 14.   Former 9.94A.535(2) (2003) (aggravating factors to support an exceptional sentence) (emphasis added).

32.   Clerk's Papers at 14.

33.   Ermels, 156 Wash.2d at 541, 131 P.3d 299 (citing State v. Turley, 149 Wash.2d 395, 400, 69 P.3d 338 (2003)).

34.   Id.

35.   State v. Alvarez, 128 Wash.2d 1, 19, 904 P.2d 754 (1995) (holding that a remand for entry of revised written findings without additional evidence was the appropriate remedy for noncompliance with JuCR 7.11(d), which requires findings to state the ultimate facts supporting each element of the charged offense).

36.   158 Wash.2d 280, 143 P.3d 795 (2006).

37.   Id. at 285, 143 P.3d 795 (emphasis omitted).

38.   Id. at 287, 143 P.3d 795.

39.   Id.

40.   Id. at 293, 143 P.3d 795.

41.   158 Wash.2d 369, 144 P.3d 298.

42.   Id. at 372, 144 P.3d 298.

43.   Id. at 374, 144 P.3d 298.

FN44. Trummel v. Mitchell, 156 Wash.2d 653, 670, 131 P.3d 305 (2006)..  FN44. Trummel v. Mitchell, 156 Wash.2d 653, 670, 131 P.3d 305 (2006).

FN45. Id. at 670-71, 131 P.3d 305..  FN45. Id. at 670-71, 131 P.3d 305.

FN46. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)..  FN46. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

FN47.  U.S. Const. amend.   VI, XIV;  Wash. Const. art. 1, § 22 (amend.10)..  FN47.  U.S. Const. amend.   VI, XIV;  Wash. Const. art. 1, § 22 (amend.10).

FN48. State v. Robinson, 153 Wash.2d 689, 694, 107 P.3d 90 (2005)..  FN48. State v. Robinson, 153 Wash.2d 689, 694, 107 P.3d 90 (2005).

FN49. United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)..  FN49. United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

FN50. Id. at 659-60, 104 S.Ct. 2039 (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932))..  FN50. Id. at 659-60, 104 S.Ct. 2039 (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

FN51. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)..  FN51. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

FN52. State v. James, 48 Wash.App. 353, 359, 739 P.2d 1161 (1987)..  FN52. State v. James, 48 Wash.App. 353, 359, 739 P.2d 1161 (1987).

FN53. State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996)..  FN53. State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996).

FN54. 34 Wash.App. 23, 658 P.2d 1279 (1983)..  FN54. 34 Wash.App. 23, 658 P.2d 1279 (1983).

FN55. 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158..  FN55. 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

FN56. Morris, 34 Wash.App. at 24, 658 P.2d 1279..  FN56. Morris, 34 Wash.App. at 24, 658 P.2d 1279.

FN57. Id..  FN57. Id.

FN58. Powell, 287 U.S. at 53, 53 S.Ct. 55..  FN58. Powell, 287 U.S. at 53, 53 S.Ct. 55.

FN59. Id. at 58, 53 S.Ct. 55..  FN59. Id. at 58, 53 S.Ct. 55.

FN60. 137 Wash.App. 1, 150 P.3d 643 (2007)..  FN60. 137 Wash.App. 1, 150 P.3d 643 (2007).

FN61. Id. at 8, 150 P.3d 643..  FN61. Id. at 8, 150 P.3d 643.

FN62. State v. Canfield, 154 Wash.2d 698, 701, 116 P.3d 391 (2005)..  FN62. State v. Canfield, 154 Wash.2d 698, 701, 116 P.3d 391 (2005).

FN63. Id. at 702, 116 P.3d 391 (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962))..  FN63. Id. at 702, 116 P.3d 391 (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

FN64. Id. at 706, 116 P.3d 391..  FN64. Id. at 706, 116 P.3d 391.

FN65. Id. at 705, 116 P.3d 391 (emphasis added)..  FN65. Id. at 705, 116 P.3d 391 (emphasis added).

FN66. Id. at 706, 116 P.3d 391..  FN66. Id. at 706, 116 P.3d 391.

FN67.  Report of Proceedings (May 23, 2005) at 6..  FN67.  Report of Proceedings (May 23, 2005) at 6.

FN68. (Emphasis added.).  FN68. (Emphasis added.)

FN69. RAP 2.5(c)(1);  State v. Barberio, 121 Wash.2d 48, 50-51, 846 P.2d 519 (1993)..  FN69. RAP 2.5(c)(1);  State v. Barberio, 121 Wash.2d 48, 50-51, 846 P.2d 519 (1993).

COX, J.