WA Court of Appeals - Div. II: Kitchen sink approach to criminal appeal doesn't work
Elmore appeals, arguing (the list is long, so I'm just going to do a quote):
[A]n officer's improper opinion testimony that she was evasive and untruthful in giving a statement violated her right to a jury trial, (2) her conviction of burglary, the predicate crime for felony murder, merged with her conviction of felony murder, and (3) the restraint that formed the basis for her kidnapping conviction was incidental to other crimes and, thus, insufficient to support a separate kidnapping conviction. She also contends (4) the post-Blakely1 legislative amendments to the Sentencing Reform Act (SRA), chapter 9.94A RCW, do not apply to her pre-Blakely crimes, (5) the prosecution acted vindictively in amending the information after her two successful appeals, (6) the addition of aggravating factors to the amended information after her two previous appeals violated double jeopardy and the mandatory joinder rule, and (7) the sentencing court's findings of aggravating factors violated her right to a jury trial on the findings.
Of course this is affirmed, otherwise I wouldn't be giving a slightly dismissive attitude. Elmore had a previous appeal, but did not address these issues. The State of course argues that this precludes the appeal. The court decided on the merits, otherwise I wouldn't be titling this the kitchen sink approach. Here we go:
1) This wasn't raised at trial. Since it doesn't go to an ultimate fact, it's out. The court, in dicta, said that there was no harm because the officer also corroborated some of her story and the jury was instructed that THEY were the sole judges of credibility.
2) This wasn't raised either, but merger is manifest. However, the burglary statute has a specific anti-merger clause.
3) Generally this is analyzed under sufficiency of the evidence. Elmore was convicted of conspiracy to commit burglary in this home invasion robbery. The people who actually committed the robbery may have an argument that the kidnapping is incidental resstraing to any armed robbery (see Korum, 120 Wn. App. 686), but not the case for the burglary.
4) Blakely has to be put through to a jury. You don't get a free pass on aggravators.
5) Increasing charges after withdrawing a guilty plea, without more, doesn't amount to prosecutorial vindictiveness.
6) This one gets a quick block quote to explain the double jeopardy:
Nor does double jeopardy restrict the length of a sentence imposed on retrial after a defendant's successful appeal. State v. Jones, 102 Wn. App. 89, 98, 6 P.3d 58 (2000); see also North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), rev'd on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). While the United States Supreme Court has held that double jeopardy prevents retrying a defendant on previously rejected aggravating factors supporting the death penalty, Bullington v. Missouri, 451 U.S. 430, 446, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), double jeopardy protections are generally inapplicable to sentencing proceedings. Powell, 2009 WL 4844354 at *8; Eggleston, 164 Wn.2d at 70-71.
As to the mandatory joinder rule:
After she withdrew her plea agreement, Elmore had yet to be tried for any offense and could not move to dismiss a related offense under CrR 4.3.1(b)(3). The prosecutor had discretion to amend the information, including adding new charges, under CrR 2.1(d). Elmore's claim relating to the addition of predicate crimes and enhancements to the fourth amended indictment therefore fails. See also Powell, 2009 WL 4844354 at *8 (resentencing does not violate the mandatory joinder rule because aggravating circumstances do not constitute an offense). In addition, Elmore never moved to dismiss any additional charges before the second trial. Thus, she did not preserve the alleged error with respect to the alternative means of burglary. See RAP 2.5. Elmore's only vehicle for addressing this error is her claim that counsel was ineffective for failing to move to dismiss the additional offenses, an issue we discuss below.
7) Oddly enough, the trial court found aggravating factors by a preponderance after the jury found them beyond a reasonable doubt. Seeing as the sentencing was only done off the ones found by the jury, no harm, no foul.