Opinion
No. 31623-4-II
Filed: February 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 00-1-01333-9. Judgment or order under review. Date filed: 03/15/2004. Judge signing: Hon. Stephanie A. Arend.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Lisa Karen Wagner, Attorney at Law, Co City Bldg, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Jeremy Dale Smathers appeals his sentence for unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. He argues that the trial court erroneously included his juvenile adjudications in the offender score and erroneously denied his motion for relief from judgment. The State concedes these errors.
Smathers asks us to vacate his sentence and to remand for resentencing with the correct offender score. We agree, vacate the sentence, and remand for recalculation of the offender score and resentencing.
FACTS
Smathers was born on June 23, 1977. In 2000, Smathers pleaded guilty to unlawful possession of pseudoephedrine with intent to manufacture methamphetamine, reckless driving, and obstructing a law enforcement officer, which occurred on March 16, 2000.
At sentencing, Smathers stipulated to his prior record and his offender score, calculated as 8. Among other prior convictions, the trial court included a juvenile adjudication from November 6, 1991, and a juvenile adjudication from January 8, 1992, in Smathers' criminal history. Based on the offender score of 8 and a seriousness level of VIII, on September 12, 2000, the trial court sentenced Smathers to 101.5 months, within the standard range of 87-116 months.
Smathers committed the underlying offenses before he was 15 years old.
Three years later, on December 1, 2003, Smathers moved to modify/amend his sentence, arguing that his 1991 and 1992 juvenile adjudications had washed out and, therefore, should not have been counted in computing his offender score. The trial court denied his motion for relief from judgment on grounds that it was time barred by RCW 10.73.090.
Smathers appeals the trial court's ruling on the time bar effect of RCW 10.73.090 and its inclusion of his 1991 and 1992 juvenile adjudications in his offender score. The State concedes error.
ANALYSIS
For current offenses committed on or after July 1, 1997 (the effective date of the 1997 amendments to Washington's Sentencing Reform Act of 1981 (SRA)), but before June 13, 2002 (the effective date of the 2002 amendments to the SRA), an offender's prior juvenile adjudications are included in his criminal history. In re Pers. Restraint of Jones, 121 Wn. App. 859, 871, 88 P.3d 424 (2004).
But depending on the nature of the prior juvenile offense, the offender's age when he committed the prior juvenile offense, and the offender's age on July 1, 1997, an offender's prior juvenile adjudications can `wash out.' Jones, 121 Wn. App. at 870. Thus, a prior juvenile adjudication will wash out if the offender committed the underlying juvenile offense before age 15, provided that he attained age 15 before July 1, 1997. Jones, 121 Wn. App. at 871. Alternatively, a prior juvenile adjudication will wash out if the offender committed the underlying juvenile offense while age 15 or older, provided that he attained age 23 before July 1, 1997. Jones, 121 Wn. App. at 871.
I. Offender Score Inclusion of Washed Out Prior Juvenile Adjudications
Smathers contends that his prior juvenile adjudications from 1991 and 1992 had already washed out before the 1997 SRA amendments. The State concedes that these prior juvenile adjudications washed out and should not have been included in calculating his offender score.
We accept the State's concession of error. Smathers committed the underlying juvenile offenses before age 15 and then attained age 15 before July 1, 1997. Thus, under Jones, 121 Wn. App. at 871, and State v. Perry, 110 Wn. App. 554, 559-60, 42 P.3d 436 (2002), Smathers' prior 1991 and 1992 juvenile adjudications had washed out and could not be included in calculating his offender score.
II. No Time Bar Where Judgment and Sentence Facially Invalid
Furthermore, because the trial court imposed a sentence based on an incorrect offender score, Smathers argues that (1) his sentence is not `valid on its face' within the meaning of RCW 10.73.090(1); and (2) therefore, even though he filed his motion for relief from judgment more than one year after the final judgment, RCW 10.73.090(1) did not time bar his motion. The State concedes this error as well. We agree.
Generally, collateral attacks on judgments and sentences are prohibited if not brought within one year of becoming final. In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 6, 100 P.3d 805 (2004). RCW 10.73.090(1) states that `[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.' (Emphasis added.)
`However, the one-year statutory time bar is not applicable to judgments and sentences that appear facially invalid.' LaChapelle, 153 Wn.2d at 6 (citing RCW 10.73.090(1)) (emphasis added). A judgment and sentence, which was improperly calculated using previously washed out juvenile adjudications, is invalid on its face. LaChapelle, 153 Wn.2d at 6 (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 865-67, 50 P.3d 618 (2002)).
Because Smathers has met his burden of demonstrating that his sentence was invalid on its face, his motion for relief from judgment was not time barred. Thus, the trial court erred in denying Smathers' motion for relief from judgment on grounds that the motion was time barred.
Accordingly, we vacate Smathers' sentence and remand for recalculation of his offender score, without the washed out prior juvenile adjudications, and for resentencing.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and ARMSTRONG, J., Concur.