Opinion
No. 26041-1-III.
February 19, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 97-1-00965-1, Michael P. Price, J., entered March 30, 2007.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kulik, JJ.
A trial judge may relieve a party from final judgment for specified reasons, including mistake, void judgment, or other reasons that justify relief from operation of the judgment. CrR 7.8(b). But the defendant must move within a reasonable time or one year of the judgment unless the judgment is invalid on its face. RCW 10.73.090; CrR 7.8(b). Here, the court convicted the defendant in August 1997 and he moved for relief in March 2007. He claimed, among other things, that the sentencing court miscalculated his offender score. But the judgment here is valid on its face and the motion for relief under CrR 7.8(b) therefore comes too late. The trial judge did not then abuse his discretion by denying the defendant's motion. And we affirm.
FACTS
A jury found Samuel D. Martin guilty of first degree assault and two counts of first degree reckless endangerment in August 1997. He was convicted and sentenced on each offense on October 1, 1997.
The sentencing court calculated Mr. Martin's offender score to be "9 or more" for each of the three convictions sentenced. The court added together the two other current offenses, one other current conviction listed under a different cause number (attempting to elude), and eight prior convictions to arrive at Mr. Martin's offender score.
Mr. Martin appealed his convictions in 1997 and then later petitioned for relief from personal restraint in 2001. We affirmed his convictions.
State v. Martin, noted at 97 Wn. App. 1058 (1999). And we dismissed his personal restraint petition. In re Pers. Restraint of Martin, No. 19669-1-III (Wash.Ct.App. Feb. 16, 2001). Mr. Martin then moved for relief from judgment under CrR 7.8(b)(1), (4), and (5) in March 2007. The trial court denied the motion. That order and other assignments of error that we have already addressed are the subject of Mr. Martin's latest appeal.
DISCUSSION
Mr. Martin argues that the trial court abused its discretion when it denied his motion for relief from judgment. He argues that his judgment and sentence should be vacated because the court miscalculated his offender score. And he states that the sentencing court acted without authority when it imposed a sentence based on an improperly calculated offender score. State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).
We review a trial court's decision on a motion for relief from judgment for abuse of discretion. State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653 (2001). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.3d 775 (1971).
Mr. Martin moved for relief pursuant to CrR 7.8(b). It permits a trial court to grant relief from a judgment for mistake, void judgment, or for any other reason justifying relief from the operation of the judgment. CrR 7.8(b)(1), (4), (5). "The court may deny the motion without a hearing if the facts alleged in the affidavits do not establish grounds for relief." Former CrR 7.8(c)(2) (2003). And the court uses the applicable statutory scheme that CrR 7.8(b) references to determine whether or not a motion for relief is time-barred. CrR 7.8(b) ("[t]he motion shall be made within a reasonable time and for [mistakes] not more than 1 year after the judgment . . . was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and .140").
The court entered the challenged judgment and sentence on October 1, 1997. And Mr. Martin moved for relief from judgment on March 9, 2007, well after the one-year time limit in CrR 7.8(b). Accordingly, his motion under CrR 7.8(b)(1) is untimely.
A motion for relief from judgment made on the ground that the judgment is void or that other reasons justify relief must be made "within a reasonable time." CrR 7.8(b). A reasonable time is limited to one year under RCW 10.73.090 unless exceptions set out in RCW 10.73.090 and .100 apply. CrR 7.8(b). Generally, a challenge to a judgment and sentence must be filed no more than one year after the judgment and sentence becomes final unless the movant shows that the judgment and sentence is facially invalid or was not entered by a court of competent jurisdiction. RCW 10.73.090(1).
RCW 10.73.090(1) provides that a motion attacking a judgment and sentence must be filed no more than one year after the judgment and sentence becomes final unless the movant shows that the judgment and sentence is facially invalid or was not entered by a court of competent jurisdiction. However, "[t]he time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:" (1) newly discovered evidence, discovered after reasonable diligence; (2) the statute the defendant was convicted of violating was unconstitutional on its face or as applied; (3) double jeopardy; (4) insufficient evidence to support the conviction; (5) the sentence exceeded the court's jurisdiction; or (6) a significant, material change in the law. RCW 10.73.100.
Mr. Martin urges us to review his sentence despite his untimely motion because he claims the sentence is invalid on its face. It is not. A judgment or sentence is not invalid on its face unless the invalidity is apparent without further elaboration. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002); In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 55 P.3d 615 (2002); Robinson, 104 Wn. App. 657.
That is, the judgment and sentence itself (and documents signed as part of a plea agreement) must show the invalidity. Goodwin, 146 Wn.2d at 866 n. 2.
Mr. Martin contends that his offender score should have been a five for his 1997 convictions. He asserts that his two 1980 convictions (for second degree burglary and taking a motor vehicle without permission (TMVWOP)) should have counted as one point for offender score calculation purposes. He contends that one point is proper because the court ordered the sentences for both 1980 convictions to run concurrently. And he argues that his two 1983 convictions (also for second degree burglary and TMVWOP) should have counted as one point for offender score purposes. He again contends that one point is proper because the court ordered the sentences for both 1983 convictions to run concurrently.
Mr. Martin also argues that two additional convictions (for first degree escape and third degree assault), both sentenced on November 11, 1988, constituted the same criminal conduct. He contends that the two 1988 convictions therefore should have counted as one point for the purpose of calculating his offender score.
We cannot determine from the face of Mr. Martin's 1997 judgment whether his convictions in 1980 for second degree burglary and TMVWOP were served concurrently. Neither can we determine from the face of the 1997 judgment whether Mr. Martin's convictions in 1983 for second degree burglary and TMVWOP were served concurrently. And we disagree that Mr. Martin's convictions for first degree escape and third degree assault constitute the same criminal conduct.
Mr. Martin argues that Roche holds that all offender scores are reviewed de novo. Roche, 75 Wn. App. 500. And he invites us to review his judgments and sentences for previous convictions and his criminal history based on the statutes in effect in 1997. He then invites us to conclude that the 1997 judgment and sentence was incorrect. The judgment and sentence under review here is the one entered in 1997. And that is the only judgment and sentence we will review. Goodwin, 146 Wn.2d at 866.
The 1997 judgment and sentence, on its face, correctly reflects that Mr. Martin's offender score was a "9 or more" for each of the three counts sentenced. The court calculated Mr. Martin's offender score by adding one point for each of the following: two other current offenses, one other current conviction listed under a different cause number (attempting to elude), and eight prior convictions constituting criminal history. The score totals eleven if each offense counts as one point. Even if the two 1980 convictions and two 1983 convictions counted as one offense, as Mr. Martin contends, his offender score would total nine. Either calculation results in a sum total offender score of nine or more.
The sentence here is not facially invalid.
We have previously addressed some of Mr. Martin's additional assignments of error — his challenges to jury instructions 14 and 16. And none of the assignments of error challenge the facial validity of his sentence. His entire motion then will be time-barred under RCW 10.73.090 unless he can show that his motion is based solely on the exceptions specified in RCW 10.73.100. We review those statutory exceptions to determine whether they apply to Mr. Martin's motion.
RCW 10.73.100 sets out a number of exceptions to this one-year time limit on collateral attacks: (1) newly discovered evidence, discovered after reasonable diligence; (2) the statute the defendant was convicted of violating was unconstitutional on its face or as applied; (3) double jeopardy; (4) insufficient evidence to support the conviction; (5) the sentence exceeded the court's jurisdiction; or (6) a significant, material change in the law.
A motion asserting one or more grounds under RCW 10.73.100 along with other grounds that do not satisfy RCW 10.73.100 is a "mixed" motion and is therefore subject to the one-year time limit of RCW 10.73.090. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000). And that is what we have here.
Mr. Martin's motion is not "based solely" on the grounds specified in RCW 10.73.100. He claims that (1) the sentencing court miscalculated his offender score in 1997; (2) he received ineffective assistance of counsel because his attorney failed to object to the miscalculated offender score; and (3) his counsel provided ineffective assistance when he proposed, failed to object to, and withdrew an objection to three different jury instructions. His second and third contentions do not fit within any of RCW 10.73.100's exceptions to RCW 10.73.090's one-year time limit. Stoudmire, 141 Wn.2d at 349-50. Mr. Martin's motion is then, in the language of Stoudmire, "mixed." Id. at 349.
Every ground that Mr. Martin asserted was untimely, and every ground failed to satisfy any exception to RCW 10.73.090's one-year time limit. The court then properly denied Mr. Martin's motion for relief from judgment. In re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003).
Moreover, a claim of ineffective assistance must be brought within one year of the final judgment. Stoudmire, 141 Wn.2d at 349-50.
We affirm the order denying Mr. Martin's request for relief from judgment pursuant to CR 7.8(b)(1), (4), (5).
A majority of the panel has determined that 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.
Brown, J.
Kulik, J.