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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 66079-9-I
                      Respondent,           )
                                            )       DIVISION ONE
          v.                                )
                                            )
HUNG VAN NGUYEN,                            )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED:  January 30, 2012

       PER CURIAM.  Hung Van Nguyen appeals the sentence imposed 
following our remand for resentencing.1 He also appeals the disposition of his 

pro se motion for an exceptional sentence and a new trial under CrR 7.4, 7.5 

and 7.8. We affirm.  

       Nguyen first contends his new sentence must be vacated and remanded 

for the court to decide whether or not to consider his request for an exceptional 

sentence.  He acknowledges that courts have discretion to decline to consider

pro se arguments when, as here, the defendant is represented by counsel.  In re 

Quinn, 154 Wn. App. 816, 841, 226 P.3d 208 (2010).  He argues, however, that 

the record must expressly demonstrate the court's exercise of such discretion,

and absent such a record we must remand for the court to exercise its discretion

on the record.  Nguyen cites no authority supporting such a requirement.  This 

omission is fatal.  RAP 10.3(a)(6); State v. Veliz, 160 Wn.App. 396, 409, 247 

P.3d 833 (2011) (appellate court need not consider arguments unsupported by 

authority).  In any event, the record establishes that the court read Nguyen's

1 State v. Hung Van Nguyen, No 54933-2-I (2005). 

No. 66079-9-I/2

motion before the resentencing hearing, discussed some of the issues in it at the 

hearing, and decided to transfer the motion to this court for treatment as a 

personal restraint petition (PRP).  The court exercised its discretion.

       Next, for the first time in this second appeal, Nguyen contends the court's 

imposition of three weapon enhancements based on his use of a single weapon 

on a single occasion amounts to double jeopardy. He concedes that this court 

has repeatedly rejected this argument but contends those cases were wrongly 

decided.  See e.g. State v. Huested, 118 Wn. App. 92, 94-95, 74 P.3d 672 

(2003), review denied, 151 Wn.2d 1014 (2004); State v. Elmi, 138 Wn. App. 

306, 322, 156 P.3d 281 (2007) (citing Huested); State v. Esparza, 135 Wn. App. 

54, 67 n.24, 143 P.3d 612 (2006) (following Huested and noting the argument 

has been repeatedly and "soundly rejected.").  We adhere to our decision in 
Huested.2  

       Finally, Nguyen contends the trial court lacked authority to "summarily 

deny" his CrR 7.8 motion and was required to order a show cause hearing or 

transfer it to this court for consideration as a PRP.  He concedes that if, as the 

State argues, the trial court did not deny his motion and properly transferred it to 

this court for consideration as a PRP, then his argument is moot.  We conclude 

2 We note that the Legislature is presumed to be aware of judicial construction of 
statutes and its inaction for a substantial period of time  --  in this case 8 years  --  is 
deemed to signal its approval of such construction.  State v. Coe, 109 Wn.2d 832, 845-
46, 750 P.2d 208 (1988). Furthermore, our State Supreme Court echoed Huested's 
interpretation of the enhancement statutes in State v. Mandanas, 168 Wn.2d 84, 88-89, 
228 P.3d 13 (2010).     

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No. 66079-9-I/3

that the State is correct and that the argument is moot.

       Nguyen filed his CrR 7.8 motion twice  --  once on September 15, 2010 and 
again on September 28, 2010.3  The superior court did not rule on the motion.  

Rather, it twice transferred it to this court for treatment as a PRP.  The first

transfer order was filed in the superior court on September 14, 2010. 

Inexplicably, this date is the day before Nuguyen's CrR 7.8 motion was filed for 

the first time.  The second transfer order was filed on September 28.  Because 

the same CrR 7.8 motion was attached to the two transfer orders, this court filed 
them under the same PRP cause number, No. 66084-5-I.4 Even assuming the 

first transfer order was ineffective because its filing date preceded the earliest

filing date for the motion, the second transfer order did not suffer from the same 

flaws.   

       Affirmed. 

                                 For the court:

3 The September 28 filing is in this court's record in PRP No. 66084-5-I.  

4 We ultimately granted Nguyen's motion to voluntarily dismiss PRP No. 66084-5-I.

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