Opinion
No. 56728-4-I.
May 21, 2007.
Petition for relief from personal restraint.
Granted and remanded by unpublished opinion per Baker, J., concurred in by Appelwick, C.J., and Coleman, J.
Mark W. Engman appeals his sentence for first degree robbery and unlawful possession of a firearm, arguing that his sentence was calculated using an erroneous offender score based on a previous conviction that had washed out. Because we hold his prior conviction had washed out, we reverse and remand for resentencing.
I.
Engman was convicted by jury verdict of first degree robbery and second degree unlawful possession of a firearm. The offenses were committed on March 24, 2000. The prosecutor filed a presentence statement, to which was attached the prosecutor's understanding of Engman's criminal history. The court found Engman had a prior conviction for attempted burglary in 1990, and calculated his offender score as 2.
The criminal history submitted by the prosecutor shows that Engman received a sentence of 69 days for the 1990 conviction. It also shows several brief additional periods of detention for parole violations, the last of which was served in 1992. Thus, as shown in the prosecutor's criminal history, there was an eight-year period between Engman's last period of incarceration and the date he committed the current offenses.
Engman appealed his conviction, alleging two instructional errors. This court affirmed his conviction. He then filed a CrR 7.8(b) motion in superior court challenging the calculation of his offender score, arguing that his 1990 conviction had washed out because he spent more than five years in the community after his release from confinement without being convicted of any felonies. The superior court transferred the motion to this court as a personal restraint petition.
II.
Whether the sentencing court has exceeded its statutory authority under the Sentencing Reform Act of 1981, chapter 9.94A RCW, is an issue of law.
In re Pers. Restraint of West, 154 Wn.2d 204, 211, 110 P.3d 1122 (2005).
Engman argues that his restraint is unlawful because the court calculated his sentence based on an incorrect offender score that included a conviction that had washed out.
Under RAP 16.4, an appellate court will grant relief to a petitioner held under unlawful restraint. Engman is currently under restraint as defined by the rule, as a consequence of his convictions in superior court. A petitioner is unlawfully restrained to the extent he was sentenced on the basis of an incorrect calculation of his offender score. A court acts without statutory authority when it imposes a sentence based on a miscalculated offender score. Moreover, a sentence that is based upon an incorrect offender score is a fundamental defect that inherently results in a miscarriage of justice. When asserting non-constitutional grounds for relief from restraint, a petitioner must demonstrate that his unlawful restraint is due to a fundamental defect that inherently results in a complete miscarriage of justice.
RAP 16.4(a).
RAP 16.4(b).
In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867-68, 50 P.3d 618 (2002) (citing In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997)).
Goodwin, 146 Wn.2d at 868.
Goodwin, 146 Wn.2d at 867.
The State argues that Engman's petition is barred as untimely because the petition was filed more than one year after the judgment became final. No 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. However, a personal restraint petition may be filed after one year if it contests a sentence calculated on an offender score using a washed out conviction and the invalidity appears on the face of the judgment and sentence.
Goodwin, 146 Wn.2d at 866-67.
A judgment is facially invalid if error can be established without further elaboration. "Invalid on its face" means the judgment and sentence evidences the invalidity without further elaboration. The phrase "on its face" has been further interpreted to mean those documents signed as part of a plea agreement. The court in In re Personal Restraint of Thompson noted that a superior court sentence, valid at the time it was entered, became "invalid on its face" when the federal sentence it referred to was reversed and where there was no longer a previous sentence on which the state sentence could operate. In In re Personal Restraint of Stoudmire, an untimely personal restraint petition was not barred where the statute of limitation had expired on one count, and where the sentence imposed for the other convictions was in excess of the duration allowed by statute; on each ground the judgment or sentence was invalid on its face.
State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719, 718 P.2d 796 (1986).
Goodwin, 146 Wn.2d at 866-67.
State v. Phillips, 94 Wn. App. 313, 317, 972 P.2d 932 (1999).
141 Wn.2d 712, 10 P.3d 380 (2000).
Thompson, 141 Wn.2d at 719; State v. Klump, 80 Wn. App. 391, 396-97, 909 P.2d 317 (1996).
141 Wn.2d 342, 5 P.3d 1240 (2000).
Stoudmire, 141 Wn.2d at 354-56.
The State cites In re Hemenway for the proposition that error must be found in the judgment and sentence itself, and that an error in the plea forms does not render a judgment and sentence invalid. The Hemenway decision offers no such rule. Rather, the court held that plea documents are relevant only when they disclose invalidity in the judgment and sentence, and in that case they did not.
147 Wn.2d 529, 55 P.3d 615 (2002).
Hemenway, 147 Wn.2d at 532.
Hemenway, 147 Wn.2d at 533.
In the present case, the judgment and sentence shows Engman had been convicted of attempted burglary, and sentenced on October 5, 1990. That burglary conviction was used in calculating his current offender score. Under the 1990 version of the Sentencing Reform Act of 1981 in effect at the time Engman committed the attempted burglary, class C felonies washed out if the offender spent five consecutive years in the community without being convicted of any subsequent felonies. The judgment and sentence itself lists no crimes other than the attempted burglary, nor does it indicate when Engman was released from custody for the burglary conviction.
Former RCW 9.94A.360(2) (2000), recodified as RCW 9.94A.525 (Laws of 2001, ch. 10, §§ 6).
The State filed a presentence statement at the same time as the judgment and sentence. Attached to the statement was the prosecutor's understanding of the defendant's criminal history. The criminal history shows that Engman received a sentence of 69 days for the 1990 conviction. It also shows several brief additional periods of detention for parole violations, the last of which was served in 1992. Thus, as shown in the criminal history submitted by the prosecutor, there was an eight-year period between Engman's last period of incarceration and the date he committed the current offenses.
The State concedes that Engman's conviction would wash out if he spent five years in the community without committing any felonies, but argues that because second degree attempted burglary is a class C felony with a five-year maximum penalty, Engman could theoretically have been confined as late as October 5, 1995. Because Engman's date of release from confinement cannot be determined strictly from the judgment and sentence, the State asserts Engman cannot establish that his prior conviction had washed out, or that his offender score was thus incorrectly calculated.
But we are not limited to the four corners of the judgment and sentence in determining the facial validity of a sentence. Courts have looked to more than plea agreements in this context. In In re Personal Restraint of Hinton, the petitioners claimed to have been convicted of a nonexistent crime, and therefore their judgments and sentences were invalid on their face. The court agreed, noting that the invalidity of the petitioners' judgments and sentences was clearly shown by related documents, i.e., charging instruments, statements of guilty pleas, jury instructions, as well as the judgments and sentences themselves. Such documentation sufficiently established the facial invalidity of the judgments and sentences.
152 Wn.2d 853, 100 P.3d 801 (2004).
Hinton, 152 Wn.2d at 857.
Hinton, 152 Wn.2d at 858.
Hinton, 152 Wn.2d at 858.
This court's holding in State v. Herzog, is also illustrative. Herzog had been convicted of escape in another state. Three years later, he was convicted of rape in Germany. Five years after that, he was convicted of another rape in King County. The trial court found the German rape conviction did not meet the requirements of the United States Constitution because the trial was conducted before a panel of only two jurors, and thus could not be used in calculating Herzog's offender score. The court assigned Herzog an offender score of 1, based on the escape conviction. Herzog argued that the escape conviction should have washed out once the German conviction was found to be invalid, because he had spent more than five consecutive years in the community without being convicted of any felonies.
48 Wn. App. 831, 740 P.2d 380 (1987).
Herzog, 48 Wn. App. at 832.
Herzog, 48 Wn. App. at 833.
This court noted that under RCW 9.94A.110, the State must establish a defendant's criminal history for sentencing purposes by a preponderance of the evidence, and may do so by introducing any document of record or transcripts of prior proceedings to meet its burden of proof. The court held that the State's own evidence established, on its face, that Herzog was convicted by a 2-person jury in the German case, and thus that conviction was constitutionally invalid. It then held that the escape conviction had consequently washed out, and that Herzog's sentence was facially invalid.
Former RCW 9.94A.110 (2000), recodified as RCW 9.94A.500 (Laws 2001, ch. 10, §§ 6).
Herzog, 48 Wn. App. at 834.
Herzog, 48 Wn. App. at 834.
Under Hinton and Herzog, we are not limited to examining only the four corners of Engman's judgment and sentence in determining whether the judgment and sentence is facially valid. The criminal history submitted by the State establishes on its face that Engman's prior conviction washed out in 1997. Engman thus spent more than five consecutive years in the community without being convicted of any felonies.
Because Engman's sentence was based on an erroneous offender score, a miscarriage of justice has occurred. We reverse, and remand for resentencing based upon an offender score of 1.
REVERSED.