Opinion
84036-3-I
10-31-2022
IN THE MATTER OF THE PERSONAL RESTRAINT OF: RICHARD LAMAR TAYLOR, Petitioner.
UNPUBLISHED OPINION
PER CURIAM
Richard Taylor seeks relief from personal restraint imposed following his February 2020 conviction for possession of a controlled substance with intent to manufacture or deliver and unlawful possession of a firearm in the first degree. Taylor contends that he is entitled to be resentenced because his offender score used at sentencing included two convictions for unlawful possession of a controlled substance invalidated by State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021). We agree and remand to the superior court for resentencing.
FACTS
In February 2022, Taylor filed in Snohomish County Superior Court a motion to correct his offender score and for resentencing pursuant to Blake. In Blake, the Supreme Court held that former RCW 69.50.4013(1), the statute criminalizing simple drug possession, was unconstitutional. The superior court transferred the motion to this court for consideration as a personal restraint petition pursuant to CrR 7.8(c)(2).
DISCUSSION
A personal restraint petition that challenges a judgment and sentence must be filed within one year after the judgment and sentence becomes final. RCW 10.73.090. A petitioner bears the burden of showing that his or her petition is timely. In re Pers. Restraint of Quinn, 154 Wn.App. 816, 833, 226 P.3d 208 (2010). Taylor filed this petition more than one year after his judgment and sentence became final, so it is untimely under RCW 10.73.090(1) unless he can show that (1) the judgment and sentence are facially invalid or were not entered by a court of competent jurisdiction, or (2) an exception under RCW 10.73.100 applies.
Under RCW 10.73.100(6), the time bar does not apply if the petition is "[1] based on a significant change in the law, [2] which is material to the conviction or sentence, and [3] sufficient reasons exist to require retroactive application of the changed legal standard." In re Pers. Restraint of Ali, 196 Wn.2d 220, 233, 474 P.3d 507 (2020).
Taylor's petition is not time-barred. This is so because a prior conviction based on a constitutionally invalid statute may not be considered when a sentencing court calculates an offender score. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719 (1986). "A sentencing court acts without statutory authority . . . when it imposes a sentence based on a miscalculated offender score." In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997). Under Blake, Taylor's judgment and sentence is invalid on its face because "a conviction based on an unconstitutional statute cannot be considered in calculating the offender score." State v. LaBounty, 17 Wn.App. 2d 576, 581-82, 487 P.3d 221 (2021). The adequate remedy for this type of defect is resentencing in accordance with the correct offender score. State v. Markovich, 19 Wn.App. 2d 157, 173, 492 P.3d 206 (2021).
The State concedes Taylor's offender score was miscalculated under Blake. And though the State argues that Taylor is not entitled to be resentenced because the removal of the prior controlled substance convictions would not reduce his offender score below 9 and would leave him with the same standard sentence range, the removal of those convictions from his criminal history may influence the superior court's decision to impose sentences at the high end of those ranges.
Accordingly, we grant Taylor's petition and remand for resentencing pursuant to Blake. Resentencing shall be de novo, with the parties free to advance any and all factual and legal arguments regarding his sentence.