Petition for Writ of Certiorari — Ronald Richard Brown, Petitioner v. Washington

<'y

R

I i-89<87

No.

^P^cSInus'

FILED

IN THE

SUPREME COURT OF THE UNITED STATES

SEP - 9 2019

QfFICEQF THE

RONALD RICHARD BROWN - PETITIONER

vss

WASHINGTON STATE - RESPONDENT

ON PEPTIOHjE^

(pTTIORARI TO

WASHINGTON STATE SUPREME GOIPT

PETITION FOR WRIT OF CERTIORARI

Presented By:

Ronald Richard Brown # 299428

Clallam Bay Corrections Center

1830 Eagle Crest Way

Clallam Bay, Wa 98326

Pro Se Petitioner

clerk

QUESTIONS PRESENTED

1. Can the Washington State Courts refuse to adhere to this

Courts holding in North Carolina v. Pearce?

2. Since Washington State's Sentencing Reform Act (SRA)

precludes a sentencing: court, from considering reversed

convictions when imposing a sentence, which parallels the

holding in North Carolina v. Pearce (395 U.S. at 721), can

the State Courts circumvent both the SRA and United States

Supreme Courts ruling by adhering to an inapplicable

Federal Sentencing Guideline in order to mask the

presumption of vindictiveness?

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

RELATED CASES

State v. Ameline, 118 Wn.App. 128, 75 P.3d 589 (2003)

(i)

TABLE OF CONTENTS

OPINIONS BELOW,

1

JURISDICTION..

1

CONSTITUTIONAL AND 'STATUTORY PROVISIONS INVOLVED.......... .

.2

STATEMENT OF THE CASE.......... ....................

...3

REASONS FOR GRANTING THE WRIT..............................

.6 .

CONCLUSION..........................................................

,19

INDEX TO APPENDICES

APPENDIX A - Washington State Supreme Court opinion

APPENDIX B - Washington State Appellate Court opinion

APPENDIX C - Snohomish County Superior Court resentencing

hearing

APPENDIX D - Order Denying Reconsideration and Mandate

APPENDIX E - Judgment and Sentence

APPENDIX F - Judgment and Sentence after resentencing hearing

APPENDIX G - Defendant's Resentencing Memorandum

APPENDIX H - State's Resentencing Memorandum

APPENDIX I -State's AMENDED Resentencing Memorandum

TABLE OF AUTHORITIES CITED

U.S. SUPREME COURT GASES

Alabama v. Smith, 490 U.S. 794,

109 S.Ct. 2201, 104 L.Ed,2d 865 (1989).. • ••••••• 8, 15, 16, 17

Burgett v. Texas, 389 U.S. 109,

88 S.Ct. 258, 19 L.Ed.2d 319 (1967).....

10 "

Chaffin v. Stynchconibe, 412 U.S. 17,

...14, 15, 17

93 S.Ct. 1977, 36 L;Ed.2d 714 (1973)

Golten v. Kentucky, 407 U.S. 104,

.......14, 17

92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)....

North Carolina v. Pearce, 395 U.S. 711,

89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)....

8, 10, 11, 18

Texas v. McCullough, 475 U.S. 368,

106 S.Ct. 976, 89 L.Ed.2d 104 (1986)

8, 15, 17

United States v. Goodwin, 457 U.S. 368,

8

102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)....

United States v. Tucker, 404 U.S. 443, f

10

92 S.Ct. 589, 30 L.Ed.2d 592 (1972)...

United States v. Watts, 519 U.S. 148,

117 S.Ct. 633, 136 L,Ed.2d 554 (1997)..

9, 13

Williams v. New York, 337 U.S. 241,

69 S.Ct. 1079, 93 L.Ed. 1337 (1949)....

12

(ii) .

FEDERAL CASES

United States v. Bay,

820 F.2d 1511 (9th Cir. 1987)

United States v. Gray,

852 F.2d 136 (4th Cir. 1988)..........

United States v. Pimienta-Redondo,

874 F.2d 9 (1st Cir. 1989)...........

United States v. Shue,

825’ F.2d 1111 (7th Cir. 1987)........

14

14

14

14

STATE CASES

State v. Ameline, 118 Wn.App. 128 I

75 P.3d 585 "(2003),..............

State v. Ammons, 105 Wn.2d ,175/

713 P.2d 719, 718 P.2d 796 (1986)

State v. Houf, 120 Wn.2d 327,

841 P.2d 42 (1992)...............

State v. Hunley, 175 Wn.2d 901,

287 P.3d 584 (2012).......................

State v. McAlpin, 108 Wn.2d 458,

740 Pi 2d 824 (1987)

18

>

10

9

9

f

9.9 14

;

STATUTES AND RULES

12

..».2, 9, 12, 14

3, 18

RCW 9.94A.525...

ROW 9.94A.530...

RCW 9.94A.535...

OTHER AUTHORITIES

Washington State Caseload Forecast Council,

2017 Washington State Adult Sentencing

Guidelines Manual .63................... ..

United States Sentencing Commission

Guidelines Manual 2018...................

;

(iii)

j

9

•' 2

13.

';

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitionee respectfully prays that a wit of certiorari'

issue to review the judgment below.

OPINIONS BELOW

The opinion of the highest State Court tp review the

i merits appears at Appendix A to the petition and is reported

at State v. Brown, 193 Wn.2d 280, 440 P.3d 962 (May 2, 2019)

(En Banc).

The opinion of the Washington State Appellate Court

appears at appendix B to the petition and is unpublished.

State

■

v.

Brown,

2

Wn.App.2d

1054

(March

12 r

2018)

.r

(unpublished).

JURISDICTION

The date on which the highest State Court decided my

case was, May 2, 2019. A copy of that decision appears at

Appendix A.

,

A timely motion for rehearing was thereafter denied on

June 19, 2019, and a copy of the order denying rehearing

appears at Appendix D.

The jurisdiction of this Court is invoked under 28 U.S.C

§ 1257(a).

-1-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution Amendment 14, § 1.

All persons born or naturalized in the United States »

and.subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States,

nor shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

RCW 9.94A.530 Standard sentence range.

(1) The intersection of the column defined by the

offender score and the row defined by the offense seriousness

score determines the standard sentence range (see RGE

9.94A.510, (Table 1) and RCW 9.94A.S17, (Table 3)). The

additional time for" deadly weapon findings or for other

adjustments as specified in RCW 9.94A.533 shall be added, to

the entire standard sentence range.' The court may impose any

sentence within the range that it deems appropriate. All

standard sentence ranges are expressed in terms of total

confinement.

(2) In determining any sentence other that a sentence

above the standard range, the trial court may rely on no more

information than is admitted by the plea, agreement,, or

admitted, acknowledged, or proved in, a trial or at the time

of sentencing, or proven pursuant to. RCW 9.94A.537.

Acknowledgment includes hot objecting to information stated

in the presentence reports and not objecting to criminal

history presented at the time of sentencing. Where the

defendant disputes material facts, the court must either not

consider the fact, or grant an evidentiary hearing on the

point. The facts shall be deemed proved at the hearing by a

preponderance of the evidence, except as otherwise specified

in RCW 9.94a.537. On remand for resentencing following appeal

or collateral attack, the parties shall have the Opportunity

to present and the court to consider all relevant evidence

regarding criminal history, including criminal.history not

previously presented. ;

(3) In determining any sentence above the standard

sentence range, the court shall follow the procedures set

forth in RCW 9.94A.537. Facts that establish the elements of

a more Serious crime or additional crimes may not be used to

go . outside the standard sentence range except upon

stipulation or when specifically provided for in RCW

9.94A.535(3)(d), (e), (g), hnd (h).

-2-

STATEMENT OF THE CASE

Factual and Procedural History

A jury found Ronald Richard Brown guilty of two counts

of first degree kidnapping, two counts of first degree

robbery, two counts of second degree assault, and one count

of first degree burglary in 2013. GP at 89 (initial judgment

and sentence). The Superior Court imposed a standard-range

Sentence on each of those seven counts, CP at 91, 93, It

explicitly declined to impose an exceptional sentence above

the standard range on any count under RCW 9.94A.535(2)(c)

(permitting use of high offender score as aggravating factor

in certain circumstances). CP at 116-18 (State's initial

sentencing memorandum); RP at 33-34 (06/21/2016).

Brown appealed. In 2015, the Court of Appeals reversed

four of the seven convictions. State v. Brown, No. 70148-7I,

slip op.

at 12-17. (Wash.

Ct.

App, July 27,

2015)

(unpublished). The Court ruled that an error in the jury

instructions for the kidnapping charges violated Brown's

article I, section 22 and Sixth Amendment rights to notice of

:

the charged crimes. Brown, slip op. at 7-9. It also held that

convicting and sentencing Brown for both assault and robbery

(of each of the two victims) violated his article I, section

9 and Fifth Amendment rights. Brown, slip op, at 12-17. In

other words, it reversed four of Brown's convictions due to

constitutional error.

-3-

On remand, the State declined to try Brown again on the

kidnapping charges, even though those charges carried the

highest seriousness level under the Sentencing Reform Act of

1981 (SRA), chapter 9.94A RCW. RP at 3-4 (06/21/2016); GP at

26 (motion), 25 (order).

Thus,

at Brown's resentencing in 2016,

only three

convictions remained. The offender scores for each of the

three convictions decreased from 19 at the first sentencing

hearing to 11 at the resentencing. Compare CP at 91 (initial

judgment and sentence), with GP at 9 (judgment and sentence

on remand)* And at the resentencing hearing, the State

presented no new facts. RP at 19-27 (06/21/2016).

Nevertheless, the State argued that the Court should

impose the same total period of confinement that it had

previously

imposed

because

that

period of

confinement

f'adequately represented the facts in this case. •» RP and 2122 (06/21/2016); CP at 32-36 (State's amended sentencing

memorandum on remand). But because that total period of

confinement was greater than the top of the standard ranges

for

the

three remaining convictions,

the State

sought

exceptional sentences above the range - something it had not

done at the first sentencing hearing.

The State did not focus on Brown's individual offenses

when it made this argument about "the facts of this case." CP

at

32-36.

Rather,

the

State

focused

on

reaching

a

predetermined total period of confinement for all of the

-4-

three

remaining convictions.

Id.

It offered the Court

multiple ways to impose a total period of confinement

equivalent to the one that Brown had originally received,

thus indicating that it believed “the facts of this case”

included the facts of the seven original crimes.

Specifically, when the State did discuss specific facts

to be considered at resentencing, it did not limit its

discussion to the conduct underlying the remaining robbery

and

burglary

underlying

convictions,

the reversed

It

also

relied

on

conduct

r and consequently unproven

-kidnapping counts. For example, in arguing for the same

total period of confinement, the State asserted that Brown

was “the one who's responsible in this case for the fact that

[the alleged kidnapping victims] had to endure the hours of

confinement and the hours of fear and anxiety on the night in

question and following." RP at 25 (06/21/2016)

Brown argued against exceptional sentences. He explained

that "there have been no new facts or identifiable conduct by

the defendant, besides succeeding on appeal, that this Court

or the State could use to justify an exceptional sentence."

CP at 29 (Brown's sentencing memorandum on remand).

The Superior Court declined to impose the same total

period of confinement. But it did grant the State's request

for exceptional sentences above the standard range. GP at 2122 (findings of fact and conclusions of law). The Court

concluded that the sentencing range resulting from Brown's

-5-

number of convictions together with his criminal history did

not adequately reflect his criminality, and, hence, it found

"substantial and compelling reasons" to depart from the

standard range for each conviction. Id, As a result, Brown's

y

sentence for the two robbery convictions increased from 231

months to 279 months, and his sentence for the burglary

conviction increased from 176 months to 204 months. Compare

CP at 93 (initial judgment and sentence), with CP at 11

(judgment and sentence after remand),

Brown appealed the sentence. The Court of Appeals

affirmed. State v. Brown, 2 Wn.App.2d 1054 (March 12, 2018)

(unpublished). The Washington State Supreme Court granted

review.

State v. Brown, 190 Wn.2d 1025 (2018). Brown's

sentence was upheld. State v. Brown, 193 Wn.2d 280, 440 P,3d

•

.

r’7 •

•

•

.

;

962 (May 2, 2019) (En Banc). Brown filed a timely motion to

reconsider, which was denied on June 19, 2019.

REASONS FOR GRANTING THE PETITION

As Justice Gordon-McCloud stated in her dissent, the

Washington State Supreme Court accurately recites the rules

about the presumption of vindictiveness that arises when a

postappeal

sentence

for a crime exceeds

the preappeal

sentence for that crime. But the majority applied those rules

incorrectly. The majority erred by failing to recognize that

at sentencing hearings ip Washington, judges can consider

only the facts of the crime of conviction - not the facts of

-6-

other acquitted conduct, dismissed charges,

convictions.

This

is

"offense

specific"

or reversed

sentencing

as

mandated by the State legislature. Since the legislature has

mandated such offense specific sentencing, it necessarily

follows that the only offense conduct that can be considered

in comparing the length of a preappeal sentence for a crime

to the length of the postappeal sentence for the exact; same

crime is the conduct specific to that crime - not the conduct

specific to other dismissed or acquitted crimes,

The majority makes a different comparison; it compares

the preappeal sentence ' for seven crimes to the -postappeal

sentence

for just

three of those crimes,

even

though

convictions for four of the seven crimes were reversed. That

flawed comparison leads the majority to approve postappeal

.;

.

"

■

‘

’

'

'

"

‘

S''’

'..-'-.-

sentences on the three remaining convictions that far exceed

the sentences originally imposed on those same convictions,

despite the absence of any new postappeal evidence to justify

them. In otherwords, it forever departs from the presumption

of vindictiveness standards established by this Court in

Pearce,

and thus,

because

they

affects everyone in 'Washington State

are no

longer protected

from vindictive

sentencing, upon remand, after successfully challenging their

convictions and sentence.

1. Judicial

Vindictiveness

Presumptively

Infected

Brown's Resentencing - and the State Has Not Rebutted

That Presumption

A Court violates a defendant's right to due process

-7-

under the Fourteenth Amendment when it imposes a "penalty

upon

the

defendant

for having

successfully

pursued a

statutory right to appeal." North Carolina v. Pearce, 395

U.S.

711,

724,

89 S.Ct.

2072,

23 L.Ed.2d 656 (1969),

overruled on other grounds by Alabama v. Smith, 490 U.S. 794

798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); U.S. Const.

Amed. XIV. Because "[t]he existence of a retaliatory motive

would, of course, be extremely difficult to prove in any

individual case,11 Pearce, 395 U.S. at 725 n.20, a presumption

of

judicial

vindictiveness

applies

when

"there

is

a

'reasonable likelihood' that [an] increase in [the] sentence

is that product of actual vindictiveness on the part of the

sentencing authority.” Smith, 490 U.S. at 799 (quoting United

States v. Goodwin, 457 U.S. 368, 473, 102 S.Ct. 2485, 73

L.Ed.2d

74 (1982)). Mien the record allows, however, the.,

State may rebut that presumption. Texas v. McCullough, 475

U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

Hare, there is a reasonable likelihood that Brown's

increased sentences were a response to - and therefore a

penalty for - his success on appeal. Consequently,

the

presumption of judicial vindictiveness applies. And the State

has not rebutted that presumption.

A. Brown Got Longer Sentences on His Convictions after

His Successful Appeal

r

The first step in this analysis is to determine whether

the

postappeal

sentences

were

-8-

really

longer

>

than

the

)

preappeal sentences. To do that, the Court looks to the

Washington sentencing laws.

The Washington

State

legislature

requires

offense-

specific sentencing. See ch. 9.94A RCW; Wash. State Caseload

Forecast Council,

2017 Washington State Adult Sentencing

Guidelines

63,

Manual

("For multiple current offenses,

separate sentence calculations are necessary for each offense

because the law requires that each receive a separate

sentence.").

In

furtherance

of

that

policy

decision,

Washington's SRA requires trial courts to consider only "real

facts" of the crimes of conviction at sentencing.

RCW

9.94A.530(2); State v. Houf, 120 Wn.2d 327, 332-34, 841 P.2d

42 (1992). In this respect, Washington's SRA differs from the

federal sentencing guidelines, which permits consideration of

other factors, including acquitted conduct. 18 U.S.C. § 3661,;

United States v. Watts, 519 U.S. 148, 151-54, 117 S.Ct. 633,

136 L.Ed.2d 554 (1997) (per curiam).

"Real facts" are those that the State has proved or that

the defendant has affirmatively admitted. RCW 9.94A.530(2);

State v. Hunley, 175 Wn.2d 901, 287 P.3d 584 (2012) (holding

that a defendant's silence does not relieve the State of its

burden of proving sentence-enhancing facts).

"The

'real

facts', or 'established facts' concept excludes consideration

of either uncharged crimes or of crimes that were charged but,

later dismissed." State v. McAlpin, 108 Wn.2d 458, 466, 740

P.2d 824 (1987) (collecting cases). Conduct that has "not

-9-

resulted in convictions

•••

may not be considered at all."

Id. at 467. Ihus, the SRA precludes a sentencing court from

considering reversed convictions when it imposes a sentence

because reversed convictions are not convictions. Pearce, 395

U.S. at 721 (observing that overturning a conviction results

in "the slate [being] wiped clean").

The four reversed convictions in this case fall outside

the definition of "real facts." Those convictions were not

just

"wiped

clean";

unconstitutionality.

precedent,

a

they

were

reversed

due

Under

United

States

Supreme

sentencing

court

cannot

consider

unconstitutionally

obtained conviction

for any

to

Court

an

purpose.

United State v. Tdcker, 404 U.S. 443, 448-49, 92 S.Gt. 589,

' 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 115,

• ••

_ •

--V;

v

■ ■

••

'

88 S.Ct. 258, 19 L.Ed.2d 319 (1967); State v. Ammons, 105

Wn.2d 175, 187-88, 713 P.3d 719, 718 P.2d 796 (1986). In

other words, under controlling law, Brown's sentences for his

three remaining convictions could be based on only those

three convictions. It is indisputable that the Superior Court

imposed longer sentences on each of these three convictions

after Brown's successful appeal than it did before.

B. Because Brown's Three Sentences Were Longer after

Appeal Than They Were Before, Pearce's Holding - That

a Presumption of Judicial Vindictiveness Arises When

the Same Sentencing Court Increases a Sentence after

Appeal without Any New Factual Basis - Applies in

This Case i

Pearce makes clear that a presumption of judicial

-10-

vindictiveness applies when, as here, postappeal sentences

exceed preappeal sentences. Pearce also makes clear that such

vindictiveness violates the defendant's right to due process

under the Fourteenth Amendment.

Pearce was convicted of assault with intent to commit

rape and sentenced to 12 to 15 years in prison. 395 U.S. at

713. His conviction was later reversed by a state appellate

court, and the State decided to retry him. Id. Pearce was

convicted again, and the court imposed an 8-year sentence.

Id. But "when added to the time Pearce had already spent in

prison, the parties agree[d the new sentence] amounted to a

longer total sentence than that originally imposed." Id.

:

!

'

•

The - United States Supreme Court viewed the second

sentence as a "more severe punishment," despite its facial

appearance of leniency.

Id. at 716. Yet the sentencing

court's reasons, if any, for imposing the increased sentence

were "not so dramatically clear." Id. at 726. And "the State

[had not] offered any reason or justification for that

sentence beyond the naked power to impose it." Id, The Court

V

therefore presumed that the sentencing court had imposed the

"heavier sentence" in response to the defendant's "having

succeeded in getting his original conviction set aside." Id.

at 723-24.

That presumptively vindictive response violated the

defendant's right to due process. "Due process of law

•*•

requires that vindictiveness against a defendant for having

-11-

successfully attacked his first conviction must play no part

in the sentence he receives after a new trial." Id. at 725.

The Supreme Court therefore affirmed the grant of the writ of

habeas corpus, holding that Pearce could not be imprisoned

under the unconstitutional sentence. Id.

The Court also made clear, however, that an increased

sentence will not always violate the defendant's right to due

process. It stated, "A trial judge is not constitutionally

precluded ... from imposing a new sentence, whether greater

or less than the original sentence, in the light of events

subsequent to the first trial that may have thrown new light

upon the defendant * s

life, health, habits, conduct, and

mental and moral propensities,1" which are all permissible

sentencing factors in the federal system. Id. at 723 (quoting

Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93

L.Ed 1337 (1949)). The Court noted that "[s]uch information

may come to the judge's attention from evidence adduced at

the

second

trial

itself >

investigation/ from

the

from

defendant's

a

new

prison

presentence

record,

or

possibly from other sources." Id. Thus, new information could

justify a sentence increase, but when no new information

exists, a presumption of judicial vindictiveness arises.

No relevant new information about Brown or his crimes

was presented at his resentencing, though it certainly could

have

been.

RCW

9.94A.530(2);

RCW

9.94A.525(22).

The

presumption of judicial vindictiveness therefore applies in

-12-

,

this case.

The majority holds to the contrary because it concludes

that

Brown's

sentences were not really increased.

The

majority reaches that conclusion by comparing Brown's new

total period of confinement to his1 initial total period of

confinement.

But that is not the correct comparison to make in

Washington. Instead, as discussed in Part A above, Washington

Courts must impose a specific sentence for each specific

offense of conviction based . on "real facts" proved (or

admitted) about that specific offense. Thus, as a matter of

State law,

Brown's punishment did increase because

the

comparison runs from a given conviction's initial sentence to

the same convictions new sentence. And because the. punishment

increased under State law, federal law requires that the

Court presume that vindictiveness motivated the harsher

punishment,

unless

the

l.

sentencing court relied on

new

information to justify the 'harsher sentence.

The majority follows federal circuit courts of appeals

that compare the "total aggregate" of prison time imposed at

the two sentencing hearings. But those decisions are inapt

because

they

are

based

on

a

fundamentally; different

sentencing scheme - one in which the sentencing court may

consider uncharged conduct, e.g,, United States Sentencing

Commission Guidelines Manual 2018 § lB1.3(a), as well as

acquittals and reversed convictions. See Watts, 519 U.S. at

. -13-

151-54. Under that sentencing scheme, federal courts consider

sentences a package penalty for the crimes of conviction. See

United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Gir.

1989); United States v. Gray, 852 F.2d 136, 138 (4th Cir.

1988); United States v. Shue, 825 F.2d 1111, 1114-15 (7th

Cir. 1987); United States v. Bay, 820 F.2d 1511, 1513-14 (9th

Cir. 1987). Contrary to the federal model, where the ‘'factors

underlying the original sentence in a multiple count case are

not necessarily altered when a defendant successfully appeals

his conviction on one count," Pimienta-Redondo, 874 F.2d at

14, the facts are necessarily altered in Washington when a

conviction is overturned, ROW 9.94A.530(2); McAlpin, 108

Wn,2d at 465-67.

C. Subsequent Decisions Narrowed Pearce - But It Still

Applies with Full Force to This Exact Type of Case

It is true that subsequent United States Supreme Court

decisions have limited Pearce. But those decisions reinforce,

not

undermine,

the conclusion

that

the presumption of

judicial vindictiveness applies here.

The earliest post-Pearce Supreme Court decisions held

that a presumption of judicial vindictiveness does not arise

when the second sentencer, whether it be judge or jury,

differs from the first sentencer. See Chaffin v. Stynchcombe,

412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Colten v.

Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

The Court noted that there is less risk of vindictiveness

-14-

when the second sentencer "is not the Court that is asked to

do over what it thought it had already done correctly."

Colten, 407 U.S. at 116-17; see also Chaffin, 412 U.S. at 27.

In some instances, the second sentencer may not even have

knowledge of the initial sentence. Chaffin, 412 U.S. at 2627. Accordingly, no reasonable likelihood - and therefore no

presumption - of vindictiveness exists in those situations.

Ttoo later decisions, McCullough and Smith, underscored

Pearce's.cautionary statement that no presumption of judicial

vindictiveness arises when the sentencing court relies on

new, previously unavailable information to impose a harsher

sentence at resentencing.

In McCullough, a defendant received a 20-year prison

sentence after his first trial for murder, but a 50-year

sentence after his second trial. 475 U.S. at 135-36. But the

Court upheld,the longer sentence against the defendant's

Pearce challenge. Reviewing the record, the Court noted that

the trial judge explained that she had imposed a 50-year

sentence partly because of "the

testimony of

two new

witnesses" at the second trial that had cast the defendant's

conduct in a worse light. Id, at 143. Ihe Court held that

that

testimony

defendant's

and

criminal

other

new

history

information

permissibly

about

the

supported

the

increased sentence# Id. at 144. Thus, McCullough clarified

that the Pearce presumption does not apply when there is

"new, probative evidence" to support the imposition of a

-15-

harsher sentence at the second proceeding. Id. at 143.

Smith, bolstered

that conclusion.

In that case,

a

defendant pleaded guilty to burglary and rape and received

two concurrent 30-year sentences for the two convictions. 490

U.S. at 795-96. The defendant later argued that his plea was

not knowing and voluntary, and an appellate court permitted

him to withdraw the plea. Id. 796.

The State then prosecuted the defendant for burglary,

rape, and sodomy. Id. At the trial, a cacophony of terrible

facts emerged:

[T]he victim testified that respondent had broken into

her home in the middle of the night, clad only in his

underwear and a ski mask and wielding a kitchen knife.

Holding the knife to her chest, he had raped and

sodomized her repeatedly and forced her to engage in

oral sex with him. The attack, which lasted for more

than an hour, occurred in the victim's bedroom, just

across the hall from the room in which her three young

children lay sleeping.

Id. On those facts, "[t]he jury returned a verdict of guilty

on all three counts." Id.

At sentencing, "the trial judge imposed a term of life

imprisonment for the burglary conviction, plus a concurrent

term of life imprisonment on the sodomy conviction and a

. consecutive term of 150 years * imprisonment on the rape

conviction/' Id. Thus, the sentences for the burglary and

rape convictions

increased as compared

to the

initial

sentences imposed for those crimes under the plea bargain.

And the life sentence for the new sodomy conviction far

outstripped the 30-year prison terms that the defendant - had

-16-

initially received for the other two convictions.

But

the Supreme Court upheld the longer sentences

against a Pearce challenge, even though the same judge had

imposed both sets of sentences. The Court pointed out that

"[t]he trial court [had] explained that it was imposing a

harsher

sentence

than

it

had

imposed

following

[the

defendant's] guilty plea because the evidence presented at

trial, of Which it had been unaware at the time it imposed

sentence on the guilty plea, convinced it that the original

sentence had been too lenient.** Id. at 796-97. And just as

the new information made a difference to the trial court, it

made a difference to the Supreme Court's Pearce analysis. "As

this case demonstrates, in the course of the proof at trial

the judge may gather a fuller appreciation of the nature and

extent of the crimes charged," it observed. Id. at 801. The

Court therefore held that when new information about the

defendant's conduct comes

into the record,

the Pearce

presumption does not apply. Id. at 802.

Golten, Chaffin, McCullough, and Smith confirm that the

Pearce presumption applies in this case. The same Superior

Court

judge

sentenced

Brown

both

times.

RP at

33-34

(06/21/2016). The State presented no new facts at the

resentencing to support the harsher exceptional sentences. In

fact, Washington's "real facts" doctrine provided that there

were fewer inculpatory facts than existed at the initial

sentencing.

-17-

L

Although the Superior Court complied with Pearce's

mandate to affirmatively identify its reason for imposing

harsher sentences on remand, 395 U.S. at 726, its explanation

of its decision did not - and could not - generate any new

facts about the crime. The Court stated only a general basis

for imposing sentences above the standard range, and it was a

bases that was even more justified at the first sentencing

when the offender scores were far higher: "I don’t think it's

appropriate for you to have free crimes in relation to what

happened

here.*’

RP

at

34

(06/21/2016);

see

also ROW

9.94A.535(2)(c). So that's not a new fact, either.

Neither Brown's mitigating conduct - ensuring that one

of the victims received medication during the criminal

episode, RP at 24, 33 (06/21/2016) - nor the existence of

"free crimes" changed from one proceeding to the next. If

anything, the "number" of Brown's "free crimes" decreased

when his offender score dropped from 19 to 11 for the robbery

and burglary

convictions.

In

the

absence of

any

new

additional Inculpatory information, Pearce's presumption of

judicial

vindictiveness

applies.

Division

Two

of the .

Washington Court of Appeals reached the same conclusion in

State v. Ameline, 118 Wn.App. 128, 133-34, 75 P.3d 589 (2003)

("If. the only new fact is that [the defendant] has again

succeeded on appeal, the new sentence may not be more harsh

than the first and second ones.").

-18-

Upon remand, the State has made no effort to rebut that

presumption - arguing only that the presumption does not

apply. Appendix I at 8-11. Accordingly, the1 Court must

presume that Brown's right to due process has been violated,

and the Court should reverse the decisions of the Washington

State Court of Appeals and Supreme Court and remand the case

for resentencing on that basis. Without taking such stance in

this case, the defendants - who are convicted and sentenced

for crimes

in Washington

State

will

fear

judicial

repercussions for simply exercising their statutory and

constitutional rights to appeal and collaterally attack their

convictions and sentences. As it stands now, Washington State

v'

had

chosen

precedent

to disregard

in Pearce

sentencing guidelines

to

overcome

the

this

Court's

long-established

while also undermining

its own

by relieving the State of its burden

presumption of

vindictiveness

when a

defendant receives a harsher sentence, upon remand, following

a successful appeal or collateral attack. By setting such a

dangerous precedent in Washington State, the integrity of

Washington's criminal justice system is at stake, as the

confidence of those who matter - the public and a defendant

convicted of crime - . is forever lost. This Court should

restore that confidence by accepting review of this petition.

CONCLUSION

S'

The petition for a writ of certiorari should be granted.

-19-

c

4*

Ronald Richard Brown # 299428

Clallam Bay Corrections Center

1830 Eagle Crest Way

Clallam Bay, Wa 98326

1

)

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