STATE v. DALLUGE, 20054-0-III (Wash.App. 4-18-2002)

No. 20054-0-III.The Court of Appeals of Washington, Division Three. Panel Seven.
Filed: April 18, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Grant County, No. 97-1-00540-2, Hon. John M. Antosz, February 20, 2001, Judgment or order under review.

Counsel for Appellant(s), Dennis C. Cronin, Hearrean Cronin PS, 901 North Monroe St., Suite 356, Spokane, WA 99201.

Counsel for Respondent(s), Carolyn J. Fair, Deputy Prosecutor, Grant Co Pros Office, P.O. Box 37, Ephrata, WA 98823.

FRANK L. KURTZ, J.

Amel Dalluge was resentenced after the State successfully appealed the trial court’s original sentence. Upon remand, Mr. Dalluge was sentenced within the standard range. He appeals, contending that the trial court erred by failing to impose an exceptional sentence below the standard range and contending that the resentencing violates double jeopardy. We affirm Mr. Dalluge’s standard range sentence.

FACTS
Mr. Dalluge was previously convicted and sentenced for third degree rape as a principal and third degree rape by complicity. The trial court considered these offenses the same criminal conduct for sentencing purposes, and Mr. Dalluge was sentenced to 14 months to be served concurrently.

On appeal to this court, the State successfully argued that the trial court erred by considering these offenses the same criminal conduct. We remanded, and directed the trial court to resentence Mr. Dalluge. State v. Dalluge, No. 17541-3-III, 1999 WL 1079190 (Wash.Ct.App. Nov. 23, 1999).

On remand, Mr. Dalluge was resentenced within the standard range of 22 to 29 months. He moved for reconsideration, on the basis that he should have been credited for time spent in community custody. The motion was denied and this appeal followed.

ANALYSIS
Exceptional Sentence. Ordinarily, a defendant may not appeal a sentence within the standard range for an offense. RCW 9.94A.585(1)[1] ; State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993). Appellate review is permissible only in limited circumstances, where the trial court has refused to exercise discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104
(1997). A trial court that has considered the facts and concluded that there is no basis for an exceptional sentence has exercised its discretion, and a defendant may not appeal that ruling. Id.

Mr. Dalluge contends that the court erred by not imposing an exceptional sentence below the standard range based on the concept of a failed defense. The Legislature has determined that certain `failed defenses’ may constitute mitigating factors supporting an exceptional sentence below the standard range. State v. Jeannotte, 133 Wn.2d 847, 851, 947 P.2d 1192 (1997). Essentially, a failed defense is a defense that is not fully established, but where the circumstances that led to the crime justify distinguishing the conduct involved from conduct usually involved in committing the crime. State v. Whitfield, 99 Wn. App. 331, 337, 994 P.2d 222 (1999) (citing State v. Hutsell, 120 Wn.2d 913, 921, 845 P.2d 1325 (1993)).

In this case, Mr. Dalluge fails to set forth any facts or arguments explaining his failed defense theory and why the court erred by refusing to accept the defense as a mitigating factor. Specifically, there is no showing that the trial court refused to exercise its discretion or has relied upon an impermissible basis for refusing to impose an exceptional sentence below the standard range. This record demonstrates that the court considered the facts and concluded that it should not sentence Mr. Dalluge below the standard range. We conclude the trial court properly exercised its discretion when it sentenced Mr. Dalluge within the standard range. Mr. Dalluge may not appeal that sentence.

Double Jeopardy.
Additionally, Mr. Dalluge contends that resentencing him on remand to a greater sentence violates the protections against double jeopardy. This contention is without merit. In United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)), the Supreme Court stated:

`That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’

In this case, Mr. Dalluge argues that double jeopardy is violated because he will suffer multiple punishments for the same offense if the court is allowed to resentence him.

In State v. Pascal, 108 Wn.2d 125, 736 P.2d 1065 (1987), the State appealed a sentence that was below the presumptive standard range. Because at the time of the appeal the defendant had already finished serving the sentence, the defense argued, the State could not resentence her even if the original sentence was invalid. The court rejected this argument, holding that the imposition of a longer sentence, even after the original erroneous sentence had been completed, did not violate double jeopardy. Id. at 131.

Additionally, the court noted that “a sentence does not have the qualities of constitutional finality that attend an acquittal.” Id. at 132 (quoting DiFrancesco, 449 U.S. at 134). Specifically, a defendant may have his or her sentence increased if the original sentence was erroneous, and therefore invalid. Pascal, 108 Wn.2d at 132-33. Thus, as in this case, the State may seek to impose an increased sentence on appeal. Id.; see also State v. Freitag, 127 Wn.2d 141, 145, 896 P.2d 1254
(1995) (resentencing after appeal does not violate double jeopardy); State v. Pringle, 83 Wn.2d 188, 194, 517 P.2d 192 (1973) (remanding case for correction of an erroneous sentence does not violate double jeopardy).

Therefore, it is well settled that the court does not violate double jeopardy by resentencing a defendant who received an erroneous sentence, even if that sentence was completed prior to resentencing. Thus, the trial court did not err on remand by resentencing Mr. Dalluge to a standard range sentence.

We affirm Mr. Dalluge’s sentence.

The majority of the panel has determined 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.

WE CONCUR: KATO, A.C.J. SCHULTHEIS, J.