State Of Washington v. Alan John Nord
74767-3
| Wash. Ct. App. | Jun 19, 2017Background
- Alan Nord appealed twice; this is his second appeal following a resentencing ordered in the first appeal.
- In the first appeal this court held Nord could not raise a Confrontation Clause claim on appeal because he failed to assert it at trial, citing State v. O'Cain.
- Nord urged this court to reconsider that prior holding in the second appeal.
- The court reviewed subsequent Washington Supreme Court decisions and unpublished denials of review that treated O'Cain's rule as settled and found no authoritative overruling.
- The court also addressed a sentencing error conceded by the State: community custody imposed on the unlawful-delivery count exceeded the statutory maximum and must be struck.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court should revisit its prior holding that failure to assert a Confrontation Clause objection at trial bars raising it on appeal | Nord: the prior holding should be reconsidered | State: O'Cain and related authority remain binding; no intervening authoritative overruling | Court: Declined to reconsider; prior holding stands under law-of-the-case and subsequent authority supports it |
| Whether the sentence on the unlawful-delivery methamphetamine count exceeded the statutory maximum | Nord: sentence challenged as exceeding statutory maximum | State: concedes error and requests remand to correct judgment and strike 12-month community custody term and notation for that count | Court: Accepts concession; remands to correct sentence; appellate costs not imposed |
Key Cases Cited
- Greene v. Rothschild, 68 Wn.2d 1 (1966) (articulates law-of-the-case doctrine)
- State v. Worl, 129 Wn.2d 416 (1996) (reconsideration of prior appellate holdings permitted when prior holding is clearly erroneous and would cause manifest injustice)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (discusses burden and timing for asserting Confrontation Clause objections)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (Confrontation Clause and notice-and-demand principles)
- State v. O'Cain, 169 Wn. App. 228 (2012) (holds failure to assert confrontation at trial precludes raising it on appeal; central precedent relied upon)
- State v. Sublett, 176 Wn.2d 58 (2012) (discusses forfeiture/waiver and procedural rules related to confrontation rights)