State v. MANDANAS, 163 Wash. App. 712

Mandanas punched Padilla, hit him with a gun, and threatened to kill him during a 2004 altercation; he was convicted of second degree assault and felony harassment with firearm enhancements; the sentences were concurrent for offenses and consecutive for enhancements.
On direct appeal, this court upheld most convictions but remanded for resentencing on the same conduct; the Washington Supreme Court affirmed on a separate issue and issued a mandate.
At resentencing, Mandanas argued the convictions violated double jeopardy; the trial court refused to hear the argument, citing prior appellate rulings.
Mandanas did not raise the double jeopardy issue in his first appeal; the issue is therefore deemed timely to be raised only via a personal restraint petition, not in a second appeal.
The issue here is whether Mandanas’ convictions for second degree assault and felony harassment violate double jeopardy, and whether the merger doctrine applies; the court ultimately addresses merits after procedural timing.
The court holds that Mandanas’ double jeopardy challenge is not timely in a second appeal and affirms the convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mandanas may raise a new double jeopardy claim on resentencing in a second appeal	Mandanas argues new issues from resentencing may be raised	State contends issues not raised on first appeal cannot be raised in a second	Not timely; may pursue via personal restraint petition; affirmed the convictions
Do Mandanas’ convictions for second degree assault and felony harassment violate double jeopardy	Convictions based on the same conduct violate double jeopardy	Harassment and assault are distinct offenses with different elements	Not a double jeopardy violation; offenses are distinct in law and fact; merger doctrine does not apply

State v. Sauve, 100 Wash.2d 84 (1983) (second appeal cannot raise issues not raised on first appeal; remedy via P.R.P.)
State v. Jacobsen, 78 Wash.2d 491 (1970) (general rule prohibiting second-appeal issues not raised previously)
In re Pers. Restraint of Call, 144 Wash.2d 315 (2001) (courts can correct sentences on discovery; not applicable to convictions here)
State v. Leming, 133 Wash.App. 875 (2006) (distinguishes separate punishments when not expressly authorized)
State v. Martin, 149 Wash.App. 689 (2009) (same-evidence test; elements differ for the two offenses)
State v. Calle, 125 Wash.2d 769 (1995) (same-evidence analysis for double jeopardy)
Freeman, 153 Wash.2d 765 (2005) (four-factor test for double jeopardy; independent purpose of each offense)
In re Pers. Restraint of Hews, 99 Wash.2d 80 (1983) (constitutional issues may be raised via P.R.P.)
State v. Orange, 152 Wash.2d 795 (2004) (same-evidence test clarified; not strict same-conduct rule)
United States v. Dixon, 509 U.S. 688 (1993) (same conduct rule rejected in Washington context)
State v. Gocken, 127 Wash.2d 95 (1995) (rejection of strict same-conduct rule; Dixon approach adopted)
Barberio, 121 Wash.2d 48 (1993) (RAP 2.5 review limits when remand lacks independent discretion)