Opinion
No. 56712-8-I.
January 28, 2008.
Petition for relief from personal restraint.
Denied by unpublished opinion per Schindler, J., concurred in by Appelwick, C.J., and Dwyer, J.
In this personal restraint petition (PRP), Deshon Corsey contends that on remand for resentencing, the court erred in calculating the offender score for his 1991 jury convictions on two counts of assault in the first degree by including his 1991 conviction for possession of cocaine with intent to deliver, in violation of the Uniform Control Substance Act (VUCSA). Corsey also contends that, the State either waived or was barred from arguing the VUCSA conviction should be included in his offender score and that the offender score calculation breached the plea agreement on the VUCSA charge. Because the court did not err or exceed its statutory authority by including the 1991 VUCSA conviction in the offender score for the sentence on the assault convictions, the State did not waive and was not barred from arguing on remand that the offender score should include the 1991 VUCSA conviction, and the offender score calculation did not breach the plea agreement for the VUCSA charge, we deny Corsey's personal restraint petition.
On May 26, 1991, sixteen-year-old Deshon Corsey shot two men with a handgun. The State charged Corsey with two counts of assault in the first degree (King County Cause No. 91-1-04366-0). The State later filed a separate charge against Corsey for possession of cocaine with intent to manufacture or deliver on June 7, 1991, in violation of the Uniform Controlled Substances Act (VUCSA), former RCW 69.50.401(a)(1)(i), (King County Superior Court Cause No. 91-1-06251-6).
On December 4, 1991, a jury convicted Corsey on the two counts of assault in the first degree. On December 24, 1991, Corsey entered a plea of guilty on the pending VUCSA charge. In the plea agreement, the State recommended a low-end standard range sentence of 41 months based on an offender score of four, which included the assault convictions. To allow Corsey to obtain a concurrent rather than consecutive sentence, the State also agreed to schedule the sentencing on the VUCSA conviction at the same time as the sentencing for the assault convictions.
Prior to the sentencing hearing scheduled on January 29, 1992, the State recalculated and corrected Corsey's offender score and sentence recommendation for the assault convictions. According to the corrected scoring form, "Sentencing Guidelines Scoring Form, Serious Violent Offenses," the offender score for assault in the first degree Count I is a "3" with a standard sentence range of 120-160 months to be served consecutively to Count II. As stated in the scoring form, the calculation is based on two points for Corsey's prior juvenile adjudications and one point for the VUCSA conviction as an "other current" offense. Because the statute required Count II to run consecutively to Count I, the offender score for Count II is a "0" with a standard sentence range of 93-123 months. The State's Sentence Recommendation dated January 27, 1992 also states that the sentence on Count I and Count II shall be served consecutively with "each other and Ct. I concurrent with pending VUCSA."
At the sentencing hearing, the prosecutor set forth the calculation of the offender score and the State's sentence recommendation for both the assault convictions and the VUCSA conviction.
We are here for sentencing on two matters. Both are Deshon Gregory Corsey. First one is 91-1-06251-6. The second cause number is 91-1-04366-0. The first cause number was a plea on the 24th of December, 91 to a charge of VUCSA possession with intent to manufacture and deliver cocaine. The date of that offense was the 7th of June, 1991. The cause number ending 66-0 was a finding by the jury of guilty in December, 91 for two counts of assault in the first degree.
Both of those counts were found to have taken place on the 26th of May, 1991. Criminal history on it gives an offender's score of 4 for the VUCSA, resulting in a seriousness level of 8, a standard range of 41 to 54 months based on the Sentencing Reform Act.
The computation of the offender's score on the two counts of assault, Count 1 of the assault, that is on Cause Number 66-0, we have an offender's score of 3, a seriousness level of 12, resulting in a 120 to 161 range.
On Count 2, based on the [SRA], Count 2 counts as an offender's score of zero, seriousness level of 12 and a standard range of 93 to 123 months. The standard range on Counts 1 and 2 under the SRA are consecutive.
State's recommendation on the VUCSA cause number ending 51-6 is for 41 months to be served concurrent with the other cause numbers. On the cause number ending 66-0, the State is asking for the top of the range, which would come out to 282 months, Your Honor.
Nothing further from the State.
Defense counsel did not object or dispute the State's calculation of Corsey's offender score for either the assault convictions or the VUCSA conviction. With an offender score of three, the court imposed a lowend standard range sentence of 123 months on Count I assault in the first degree and 93 months on Count II to be served consecutively. According to the judgment and sentence on the assault convictions, the criminal history used in calculating the offender score of three is attached as Appendix B. With an offender score of four for the VUCSA conviction, the court imposed a low-end standard range sentence of 41 months to be served concurrently with the sentence on the assault convictions.
In the judgment and sentence that Corsey submits as a part of his PRP, he incorrectly attaches as Appendix B the Appendix B used for his 1991 VUCSA plea agreement.
After entry of the judgment and sentence, Corsey appealed his convictions for assault in the first degree. But in his appeal, Corsey did not challenge the offender score or sentence. This court affirmed the assault conviction and issued a mandate in May 1994.
In State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001), the Washington Supreme Court held that certain juvenile offenses could not count in calculating an offender score. In 2002, Corsey filed a personal restraint petition based on Smith and challenged the calculation of his offender score for the judgment and sentence on the assault convictions. In response, the State conceded the judgment and sentence was not valid on its face. The judgment and sentence states that the "[p]rior convictions constituting criminal history for purposes of calculating the offender score" are attached in Appendix B. But no Appendix B was attached.
The judgment and sentence in the present case is not valid on its face, because it reflects an offender score of 3, but includes no criminal history justifying this score. The State also concedes that Corsey's 1989 juvenile adjudication for robbery in the second degree occurred before he was 15 and therefore should not be included in the offender score. But the State argued Corsey's other prior juvenile adjudication in 1989 for taking a motor vehicle and in 1990 for assault should be included because the crimes occurred after he was 15. In the response, the State also notes that '[i]t thus appears that Corsey's offender score for Count I should have been 2, rather than 3.'
At oral argument, the State also conceded that the box indicating there was a current offense for purposes of the offender score also was not checked.
Given the holding in Smith, this court accepted the State's concession that the 1989 juvenile adjudication for second degree robbery should not have counted as part of Corsey's offender score and remanded for resentencing.
The resentencing hearing on remand was held on February 26, 2003. At the hearing, the prosecutor stated that even without the 1989 juvenile adjudication for robbery in the second degree, Corsey's offender score was a three. The State's offender score calculation was based on the 1989 juvenile adjudication for taking a motor vehicle, the 1990 juvenile adjudication for assault in the second degree, and the 1991 VUCSA conviction, which counted as an other current conviction. With an offender score of three, the State recommended the court impose the same low-end standard range sentence on the assault convictions, 120 months for Count I, and 93 months for Count II to be served consecutively to Count I.
We believe the offender score is three; that based on his 1989 juvenile Taking a Motor Vehicle adjudication, his 1990 Assault Two juvenile adjudication, and the 1991 VUCSA, which was a current offense at the time of the initial sentencing, that gives him an offender score of three for Count One with a standard range of 120 to 160.
And then because these are serious violent offenses which should be served consecutively, pursuant to the standard range, he has an automatic zero for Count Two, which leaves the standard range at 93 to 123. The State had recommended that the same sentence be imposed that [the original sentencing court] had imposed, which was the low end of the standard range as to each count.
Corsey did not take exception or object to the State's offender score calculation of three, but argued for an exceptional sentence below the standard sentence range. The court rejected Corsey's request for an exceptional sentence. "[A]s agreed upon by the parties," the court found the offender score for Count I was three and imposed a low-end standard range sentence of 120 months for Count I and 93 months for Count II to be served consecutively. The judgment and sentence specifically states that the VUCSA conviction for "KC 91-1-06251-6 SEA: VUCSA" is an "[o]ther current conviction? listed under different cause numbers used in calculating the offender score. . . ." Appendix B to the judgment and sentence lists two prior juvenile adjudication used to calculate the offender score.
Corsey did not appeal the February 26, 2003 judgment and sentence. But in 2003, he filed a PRP challenging his assault convictions, arguing the trial court should have suppressed his confession. On October 11, 2003, this court dismissed Corsey's PRP.
On February 2, 2004, Corsey filed a pro se motion in superior court to modify the February 26, 2003 judgment and sentence. Corsey argued that the 1991 VUCSA conviction should not have been included in the calculation of the offender score. The sentencing court denied Corsey's motion to modify, ruling that as a matter of law "the VUCSA charge KC 91-1-06251-6 must be counted toward the offender score for the assaults in this cause number."
On August 16, 2005, Corsey filed this PRP challenging the sentencing court's denial of his motion to modify the February 26, 2003 judgment and sentence. Corsey contends his restraint is unlawful because the sentencing court exceeded its statutory authority by including the 1991 VUCSA conviction in the offender score and calculating his offender score as a three.
Under RAP 16.4, an appellate court will grant relief to a petitioner who is unlawfully restrained. A petitioner is unlawfully restrained if he was sentenced on the basis of an incorrect calculation of his offender score. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867-68, 50 P.3d 618 (2002). A court acts without statutory authority when it imposes a sentence based on a miscalculated offender score. Id. A personal restraint petition is not barred if the court exceeded its authority in imposing the sentence. RCW 10.73.100(5). Whether the sentencing court has exceeded its statutory authority under the Sentencing Reform Act of 1981, chapter 9.94A RCW, is a question of law we review de novo.In re Pers. Restraint of West, 154 Wn.2d 204, 211, 110 P.3d 1122 (2005).
When seeking relief on nonconstitutional grounds, a petitioner must establish he is unlawfully restrained because of a fundamental defect which inherently results in a complete miscarriage of justice. In re Pers. Restraint of Goodwin, 146 Wn.2d at 868; In re Pers. Restraint of Cook, 114 Wn.2d 802, 792 P.2d 506 (1990). A sentence based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Goodwin, 146 Wn.2d at 868 (quoting In re Pers. Restraint of Cook, 114 Wn.2d at 812).
Relying on the 1991 version of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, and on State v. Whitaker, 112 Wn.2d 341, 771 P.2d 332 (1989), Corsey argues that as a matter of law the sentencing court erred by including the 1991 VUCSA conviction in the offender score calculation. We disagree.
Former RCW 9.94A.360(1) expressly provides,
A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed 'other current offenses' within the meaning of RCW 9.94A.400.
Former RCW 9.94A.400 also clearly states that "whenever a person is sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score. . . ."
Corsey's reliance on Whitaker is also misplaced. In Whitaker, the defendant was convicted of negligent homicide in December 1981, before the adoption of the SRA. Whitaker, 112 Wn.2d at 343. At sentencing, the court imposed a deferred ten-year sentence with probation. Whitaker, 112 Wn.2d at 342. In 1986, Whitaker was convicted of reckless driving while on probation. Id. Following his conviction, the court revoked Whitaker's deferred sentence and imposed a ten-year sentence.Id. In determining the minimum term for the 1981 deferred sentence, the court followed the SRA and counted the 1986 reckless driving conviction as a prior conviction. Whitaker, 112 Wn.2d at 342-43. The Washington Supreme Court reversed and held that "when a trial court revokes probation for a pre-SRA offense and then calculates the minimum term under the SRA guidelines, the date of sentencing, for purposes of the SRA, is the date of the original probation hearing."Whitaker, 112 Wn.2d at 346-47.
Here, unlike in Whitaker, the court correctly counted the VUCSA conviction in the offender score for the assault convictions as an "other current offense" under former RCW 9.94A.360(1). It is undisputed that Corsey was convicted of two counts of assault in the first degree on December 4, 1991 and pleaded guilty to the VUCSA charge on December 24, 1991 and in the plea agreement, the State agreed to schedule the assault convictions and the VUCSA conviction for sentencing at the same time to allow Corsey to obtain a concurrent, rather than a consecutive sentence. At the resentencing hearing on February 26, 2003, the court correctly counted the VUCSA conviction as an other current offense under former RCW 9.94A.360(1) in determining the offender score and the standard sentence range for the assault convictions.
In the alternative, Corsey argues that the VUCSA conviction could not be included in his offender score on remand because the State conceded in its response to Corsey's prior PRP that the offender score should be a two. Corsey mischaracterizes the State's concession and this court's decision in the prior PRP.
After the supreme court's decision in State v. Smith, Corsey filed a PRP challenging the 1992 sentence on his assault convictions. Corsey argued that the court erred by adding a point to his offender score for a juvenile adjudication that he committed before turning 15. In response, the State conceded that the 1992 judgment and sentence was not valid on its face because there was no criminal history attached to the judgment and sentence to justify the court's calculation of the offender score of three. In addition, the State conceded that Corsey's 1989 juvenile adjudication for robbery in the second degree should not be included in the offender score. But the State pointed out that two other juvenile adjudications should count. The State then noted that it appeared that Corsey's offender score would have been 2, rather than 3.
Based on the record, the State now acknowledges that statement was incorrect.
The judgment and sentence in the present case is not valid on its face, because it reflects an offender score of 3, but includes no criminal history justifying this score.
Corsey's prior adjudication for robbery in the second degree could not have been included in his offender score, since he was not yet 15 years old when that offense occurred. Corsey's prior adjudications for assault in the second degree and TMVWOP should have been included in his offender score, since he was 15 years old at the time they were committed. Pursuant to former RCW 9.94A.360(6)(b), these two offenses, which were adjudicated on the same day, count as one offense. Because assault in the second degree is a violent offense, this adjudication counts as 2 points. RCW 9.94A.360. It thus appears that Corsey's offender score for Count I should have been 2, rather than 3.
In the order granting Corsey's PRP, this court accepted the State's concession that the 1989 juvenile adjudication for robbery in the second degree should not have been included in the offender score. However, we agreed with the State that the two other prior juvenile adjudications would count as part of the offender score.
The State concedes that Corsey's 1989 juvenile adjudication for second degree robbery should not have been included in the offender score because he was not yet 15 years old when the offense was committed and that Corsey should therefore be resentenced. Given the holding in Smith, we agree. The trial court erred in including that offense in Corsey's offender score. As to Corsey's remaining 1990 juvenile adjudications for taking a motor vehicle without permission and second degree assault, however, the two offenses were both properly included in the offender score calculation since Corsey was 15 years old when they were committed.
The State's response to Corsey's prior PRP focused on Corsey's prior juvenile adjudications and did not address Corsey's 1991 VUCSA conviction. Likewise, we did not address the VUCSA conviction. Nor did we address what Corsey's offender score should be on remand. Because the State's concession was limited to addressing Corsey's challenge under Smith and this court's order only addresses whether Corsey's prior juvenile adjudications should be included in the offender score, we conclude the State did not waive the right to argue that the 1991 VUCSA conviction counted as an other current offense under former RCW 9.94A.360(1).
In sum, the sentencing court did not exceed its statutory authority on remand by including the 1991 VUCSA conviction in the calculation of Corsey's offender score for the assault convictions and the State did not waive its right to argue the VUCSA conviction should be included in the offender score.
Because the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction and Corsey filed his PRP more than one year after the judgment was final, he cannot collaterally attack the February 26, 2003 judgment and sentence. RCW 10.73.090(1); In re Pers. Restraint of Runyan, 121 Wn.2d 432, 444, 449, 853 P.2d 424 (1993). If no appeal is filed, a judgment is final on the date it is filed in the trial court. RCW 10.73.090(3). Here, the judgment and sentence was final on February 26, 2003, when the judgment and sentence on resentencing was filed with the clerk of the trial court. But Corsey did not file this PRP until August 16, 2005. Consequently, Corsey's arguments that under In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005), the State could not argue that the 1991 VUCSA conviction should be included in the offender score and that the offender score was a breach of the plea agreement are time-barred under RCW 10.73.090(1).
Nonetheless, we reject Corsey's claim that under In re Pers. Restraint of Cadwallader, the State could not argue at the resentencing that the 1991 VUCSA conviction should be included in Corsey's offender score. Here, unlike in In re Pers. Restraint of Cadwallader, Corsey did not object to the existence of his prior convictions or the State's calculation of his offender score at either the sentencing in 1992 or the resentencing in 2003. If the defendant fails to object and agrees with the State's description of the criminal history and the calculation of the offender score, the defendant waives the right to challenge it on appeal. State v. Bergstrom, ___ Wn.2d ___, 169 P.3d 816, 819 (2007).
We also reject Corsey's claim that the State breached the VUCSA plea agreement by counting the VUCSA conviction in the offender score for the assault convictions. The plea agreement does not support Corsey's argument that the State agreed to not include the VUCSA conviction in the offender score and makes no reference to the offender score for the assault convictions.
We deny Corsey's personal restraint petition.