Opinion
No. 26544-7-III.
August 14, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 98-1-00713-7, Vic L. VanderSchoor, J., entered October 19, 2007.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Korsmo, J.
Deon Q. Sollars appeals the superior court's denial of his motion to modify his 1999 Benton County judgment and sentence for first degree manslaughter while armed with a deadly weapon, second degree felon in possession of a firearm, and third degree assault. He contends that the court in 1999 improperly imposed 24 months of community custody as part of his sentence. We disagree. The combined term of confinement and community custody, totaling 188 months, does not exceed the maximum of life imprisonment. We affirm the trial court's denial of Mr. Sollars's motion to modify his sentence.
FACTS
In October 1998, Deon Q. Sollars fired a .30 caliber rifle three times at Derrick Hill, Sr., killing Mr. Hill. One of the bullets went through the windshield of Mr. Hill's vehicle, causing the glass to shatter and injure Derrick Hill, Jr., who was inside.
Mr. Sollars pleaded guilty to first degree manslaughter while armed with a deadly weapon, second degree felon in possession of a firearm, and third degree assault, as charged in the amended information. Based on an offender score of 6, the trial court determined that the total standard range sentence, including enhancements, was 206 to 254 months. However, the State recommended an exceptional sentence downward of 164 months. The trial court followed that recommendation, finding that the victim was "an initiator, aggressor and provoker of the incident." Clerk's Papers (CP) at 66. Mr. Sollars was sentenced to 164 months' confinement plus 24 months of community placement.
On October 3, 2007, Mr. Sollars filed a pro se motion to modify the judgment and sentence pursuant to CrR 7.8(b)(4). The trial court denied Mr. Sollars's motion. This appeal followed.
ANALYSIS
Mr. Sollars contends that the trial court improperly imposed a 24-month term of community placement. The sole issue before this court is whether the trial court erred by denying Mr. Sollars's motion to modify his 1999 judgment and sentence under CrR 7.8(b)(4) concerning his claim that his sentence exceeds the statutory maximum term.
Standard of Review. A trial court's ruling on a CrR 7.8 motion is reviewed for an abuse of discretion. State v. Zavala-Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005). Under an abuse of discretion standard, the trial court's decision will not be reversed unless the decision was manifestly unreasonable or based on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
CrR 7.8. CrR 7.8 allows for relief from a final judgment, including vacation or amendment of the judgment on certain grounds, including mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or other irregularities. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 880, 123 P.3d 456 (2005). Under CrR 7.8(b)(4) and (5), a party may be relieved from a final judgment if the judgment is void or for "[a]ny other reason justifying relief from the operation of the judgment."
CrR 7.8(b) provides that motions under subsections (4) and (5) must be made "within a reasonable time" and are further subject to RCW 10.73.090, .100, .130, and .140. RCW 10.73.090(1) states in pertinent part 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.
However, RCW 10.73.100(5) limits the applicability of the one-year time limit on collateral attacks if the sentence imposed was in excess of the court's jurisdiction.
Our Supreme Court, in discussing CrR 7.8 stated that the rule does not allow for relief from judgment due to errors of law. State v. Robinson, 153 Wn.2d 689, 695, 107 P.3d 90 (2005). The court clarified that relief for errors of law must be sought under CrR 7.5 (motion for a new trial), or through an appeal or personal restraint petition. Robinson, 153 Wn.2d at 695 n. 4.
On October 3, 2007, nearly 8 years after he was sentenced, Mr. Sollars filed a motion to modify his 1999 judgment and sentence pursuant to CrR 7.8(b)(4). At the same time, Mr. Sollars filed a reply to the State's response to his motion. CrR 7.8(b)(4) specifically relates to void judgments. "A judgment, decree or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void." Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968) (quoting Robertson v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352 (1943)).
The single issue raised by Mr. Sollars's CrR 7.8 motion was whether the trial court erred by imposing a sentence beyond the statutory maximum for the offense. Mr. Sollars argued that because he entered into a plea agreement and the court imposed an exceptional sentence downward of 164 months, the 164-month sentence became the new "`statutory maximum term.'" CP at 26 (citing to Zavala-Reynoso, Mr. Sollars claimed that by adding 24 months of community custody onto his 164 months of confinement, the court imposed a sentence in excess of the statutory maximum and exceeded its powers). In sum, Mr. Sollars sought to have his sentence reduced to 140 months' confinement with 24 months of community placement, resulting in a sentence within what he believed was the "statutory maximum set by the court of 164 months." CP at 29.
The State disagreed, noting that the total standard sentencing range on count 1, first degree manslaughter, was 206 to 254 months and the statutory maximum sentence was life. The State argued that Zavala-Reynoso was distinguishable, as the combined term of confinement and community placement in the present case did not exceed the statutory maximum of life imprisonment. Ultimately, the trial court denied Mr. Sollars's motion to modify the judgment and sentence and Mr. Sollars timely appealed from that order.
While the trial court's order is the basis of this appeal, Mr. Sollars fails to set forth the appropriate standard of review or provide any argument addressing whether the trial court erred by denying his CrR 7.8 motion. In fact, Mr. Sollars's appeal seeks different relief than his original motion and is based entirely on a legal argument not made to the trial court and unrelated to the single issue raised in the motion. Instead of arguing that the 24 months of community placement should be deducted from the 164 months of total confinement, Mr. Sollars appears to concede that the base sentence of 164 months was appropriate, as he argues only that the term of community placement should have been 12 months instead of 24 months.
For the first time on appeal, Mr. Sollars contends that under RCW 9.94A.700, the community placement statute, his first degree manslaughter conviction constitutes both a "crime against persons" under subsection (1)(b)(iii), and a "serious violent offense" under subsection (2)(b). Significantly, subsection (1) provides for a one-year term of community placement while subsection (2) mandates a two-year term of community placement. RCW 9.94A.700(1), (2). Mr. Sollars asserts that these different classifications of first degree manslaughter in the community placement statute create an ambiguity, as more than one interpretation can be drawn from the wording of the statute. As a result, Mr. Sollars argues that the rule of lenity applies and he should have been sentenced to the lesser term of 12 months' community placement.
We need not address this argument. Applying the appropriate standard of review, the specific issue raised by this appeal is whether the trial court abused its discretion by denying Mr. Sollars's CrR 7.8 motion to modify the judgment and sentence. Because Mr. Sollars provided no basis to justify the modification, we find no abuse of discretion.
Mr. Sollars mistakenly argued in his motion that by imposing an exceptional sentence downward of 164 months, the trial court effectively set the statutory maximum for that offense. The maximum sentence for first degree manslaughter is life imprisonment. RCW 9A.20.021(1)(a).
Mr. Sollars further argued that because he received a determinate sentence below the standard sentence range, his sentence fell outside of the Sentencing Reform Act of 1981, chapter 9.94A RCW, and he was no longer subject to a statutory maximum sentence of life. Mr. Sollars is again mistaken. Moreover, Mr. Sollars acknowledged in his plea statement that: "The crime with which I am charged carries a maximum sentence of life [] imprisonment and a $50,000 fine." CP at 67. The trial court subsequently accepted Mr. Sollars's plea and sentenced him to 164 months' confinement. The fact that the trial court imposed a determinate sentence or departed from the standard range does not affect the statutory maximum term for the crime.
Here, the combined term of confinement and community placement, totaling 188 months, does not exceed the statutory maximum term of life imprisonment. Accordingly, the trial court did not abuse its discretion by denying Mr. Sollars's CrR 7.8 motion to modify his 1999 judgment and sentence.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In his additional grounds for review, Mr. Sollars contends that the trial court erred by imposing a 60-month firearm enhancement on count 1, rather than a 36-month deadly weapon enhancement.
While Mr. Sollars contends that he should have received a 36-month enhancement, under RCW 9.94A.533(4)(a) the deadly weapon enhancement for a class A felony is actually 24 months.
Mr. Sollars again appears to use this appeal as an opportunity to challenge his 1999 judgment and sentence. Because this issue is unrelated to his CrR 7.8 motion, it is beyond the scope of this appeal. A personal restraint petition is the appropriate procedure to seek relief from judgment due to errors of law. Robinson, 153 Wn.2d at 695 n. 4.
We affirm the trial court's denial of Mr. Sollars's motion to modify his sentence.
A majority of the panel has determined 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.
SCHULTHEIS C.J., and KORSMO, J., concur.