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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  42338-3-II

                             Respondent,

       v.

DONSHAE EUGENE COLEMAN,                                    UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Donshae  Eugene  Coleman appeals the trial court's imposition of a 

sentence enhancement, arguing that the jury instructions improperly required jurors to deliberate 

to unanimity before finding that the State had not proved the sentencing enhancement applied.  

Concluding that he fails to raise an appealable issue, we dismiss Coleman's appeal.1

                                            FACTS

       On March 18, 2009, the State charged Coleman by third amended information with first 

degree robbery while armed with a deadly weapon, assault in the second degree, possession of a 

stolen motor vehicle, and bail jumping.  A jury convicted him as charged.  It also found by special 

verdict that Coleman was armed with a firearm during commission of the robbery.  The trial court 

imposed a standard range sentence and then added 60 months incarceration for the sentencing 

enhancement.  His total sentence was 111 months.  

1 A commissioner of this court initially considered Coleman's appeal as a motion on the merits 
under RAP 18.14 and then transferred it to a panel of judges. 

No. 42338-3-II

       Coleman appealed, and Division One of this court reversed his conviction for bail jumping 

and remanded to the superior court for resentencing.  State v. Coleman, 155 Wn. App. 951, 231 

P.3d 212 (2010), review denied, 170 Wn.2d 1016 (2011).  He did not challenge the sentence 

enhancement in that appeal.

       At resentencing, the trial court again imposed a standard range sentence based on the 

lower offender score resulting from the dismissal of the bail jumping conviction.  The court again 

imposed the 60-month firearm sentencing enhancement, for a total of 106 months of confinement.  

                                          ANALYSIS

       Coleman argues for the first time in this appeal that the trial court erred when it instructed 

the jury that it must be unanimous in order to find that the sentencing enhancement did not apply.  

State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010).2      The State responds that, as Coleman 

failed to raise this issue at his original trial, his first appeal, or on remand, the issue is not 

appealable.  Alternatively, the State argues that Coleman waived the Bashaw error by not raising 

it at trial.  

       When we remand for resentencing, the trial court's discretion is limited by the scope of the 

mandate.  State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009); see also RAP 12.2.  If a trial 

2 The jury instructions Coleman claims were in error read, in part:
              If any one of you has a reasonable doubt as to the question, you must 
       answer "no." If you unanimously have a reasonable doubt as to this question, you 
       must answer "no."
              . . . .
              Because this is a criminal case, each of you must agree for you to return a 
       verdict.  When all of you have so agreed, fill in the proper form of verdict or 
       verdicts to express your decision.
Supp. Clerk's Papers at 61-63 (Jury Instructions 32 and 33).

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No. 42338-3-II

court does not exercise independent judgment on remand, there is no issue to review in an appeal 

following the remand because the original judgment and sentence remains final and intact.  

Kilgore, 167 Wn.2d at 40.  The question is not whether independent judgment was exercised at 

all on remand, but rather whether independent judgment was exercised with respect to the error 

claimed on appeal.  State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993).  "Only if the trial 

court, on remand, exercised its independent judgment, reviewed and ruled again on such issue 

does it become an appealable question."  Barberio, 121 Wn.2d at 50.

       Here, Division One remanded to the trial court for resentencing because it had reversed 

Coleman's bail jumping conviction.  Although the trial court may have exercised discretion when 

reducing his sentence based on Coleman's lower standard range, it was not free to exercise 

discretion with respect to the firearm sentencing enhancement because state law mandated its 

imposition.  RCW 9.94A.533(3).  Because the trial court did not and, indeed, could not exercise 

discretion regarding the firearm enhancement, Coleman cannot now appeal from that 

enhancement.  Kilgore, 167 Wn.2d at 43.  Because Coleman has not raised an appealable issue, 

dismissal of his appeal is appropriate.  State v. Kilgore, 141 Wn. App. 817, 827, 172 P.3d 373 

(2007), aff'd, 167 Wn.2d 28, 42, 216 P.3d 393 (2009).

       And even if Coleman's appeal was properly before this court, he waived his assignment of 

error to the jury instructions.  Where an appellant raises an issue for the first time on appeal, he 

bears the burden of showing that (1) the error is "truly of constitutional dimension" and (2) the 

error was "manifest." State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009); see also RAP 

2.5(a).  Jury instruction errors requiring unanimity to answer "no" on a special sentencing-

enhancement verdict form are not constitutional in nature.  State v. Grimes, 165 Wn. App. 172, 

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No. 42338-3-II

267 P.3d 454 (2011); see also State v. Guzman Nunez, 160 Wn. App. 150, 248 P.3d 103, review 

granted, 172 Wn.2d 1004, 258 P.3d 676 (2011); State v. Ryan, 160 Wn. App. 944, 252 P.3d 895,

review granted, 172 Wn.2d 1004 (2011).  But see State v. Morgan, 163 Wn. App. 341, 261 P.3d 

167 (2011).  

       We dismiss Coleman's appeal. 

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

                   Hunt, J. 

                 Worswick, C.J.

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