In re Nelson

In the Matter of the Personal Restraint of AUSTIN RICHARD MOORES NELSON, Petitioner.

No. 37983-3-III

Court of Appeals of Washington, Division 3

August 19, 2021

UNPUBLISHED OPINION

Staab J.

On September 9, 2016, Austin Nelson pleaded guilty to first degree murder, first degree burglary, first degree animal cruelty, and second degree malicious mischief. The parties agreed on the standard sentencing range, including firearm enhancements, but did not agree on a sentencing recommendation. Ten months after sentencing, Mr. Nelson filed this personal restraint petition raising several arguments including: (1) that the application of the firearms enhancement to his animal cruelty conviction was error, (2) the victim statements by persons employed in the court system created bias and violated his due process rights, (3) the court imposed an exceptional sentence without sufficient findings of fact or conclusions of law, (4) Mr. Nelson's sentencing range was miscalculated because several convictions should have been counted as "same criminal conduct," (5) his attorney's failure to object to these errors constitutes ineffective assistance of counsel and (6) his plea was involuntary.

We agree that the firearm enhancement was incorrectly added to the animal cruelty conviction and remand for resentencing while rejecting the remainder of Mr. Nelson's issues.

FACTS

In September 2015, 19-year-old Austin Nelson was dating the 15-year-old daughter of Teresa Ryan. After Mrs. Ryan learned of the relationship, she spoke to Mr. Nelson and told him to stay away from her daughter. On January 15, 2016, after Mrs Ryan's daughter ended their relationship, Mr. Nelson damaged her car. On January 17, 2016, Mr. Nelson posted a video on social media of himself and Mrs. Ryan's daughter having sex. On January 18, Mr. Nelson went to the home of Teresa and Brent Ryan and "with premeditated intent" shot and killed Teresa Ryan outside her home. After shooting Mrs. Ryan, Mr. Nelson entered the Ryan family home and intentionally shot and killed the family dog.

At the time she was killed, Mrs. Ryan was employed in the clerk's office at Pierce County District Court.

Mr Nelson was appointed an attorney and the services of an investigator. In September 2016, Mr. Nelson pleaded guilty as charged without the benefit of an agreed recommendation. At the time of sentencing, the parties agreed that the standard range sentence for the first degree murder conviction was 281 to 374 months, with the remaining sentences running concurrently. The parties also agreed that a firearm enhancement would apply to the convictions for murder, burglary, and animal cruelty and that these enhancements would run consecutive to the underlying sentences and each enhancement. According to his statement on plea of guilty, Mr. Nelson understood that the prosecuting attorney would recommend the maximum allowable in-custody standard range sentence of 512 total months.

At sentencing, the court reviewed Mr. Nelson's statement of defendant on plea of guilty. After accepting Mr. Nelson's plea, the court considered statements from the prosecutor, victims, and Mr. Nelson. The court noted that it had read 24 victim impact statements and heard oral statements from the victim's sister and co-worker at district court. The State recommended the maximum standard range as indicated in the statement on plea of guilty and asked the court to consider the victim impact statements stating "the defendant committed a premeditated murder, killing a woman whose only crime was to protect her daughter." Report of Proceedings (RP) at 18-19.

Mr. Nelson and his attorney argued for an exceptional sentence of 419 months, based on mental health issues and Miller's^[1] application to Mr. Nelson's youth. To ensure proportionality to other similarly situated defendants' sentences and to conform to the "Real Facts Doctrine," defense counsel asked the court to disregard the victim impact statements and the fact that the victim had worked in the Tacoma District Court Building. Id. at 21. Defense counsel stressed that Mr. Nelson insisted on taking responsibility for his actions and was "eager to plead out to the original Information." Id. at 22. Even after the State added an extra charge, "He stepped up and pled as charged to everything." Id. Mr. Nelson personally repeated his goal to take full responsibility. Id. at 24-25. The trial court accepted Mr. Nelson's plea, stating:

I don't know what the evidence is in this case. . . .

I didn't know Ms. Ryan. I understand she worked in the District Court, worked in the same building. To my knowledge, I never met her. I didn't know her. The letters I read, she had a lot of people that cared an awful lot about her. You, in many ways, are a parent's worst nightmare and became her family and friends' worst nightmare. The involvement with the daughter, being told not to have a relationship and then basically wait for her and kill her, go into the house and end up killing the dog as well.

I appreciate the materials [defense counsel] gave to me. I did read them. Resp't Br. App. "E" at 25-26. The court's comments do not focus on the co-worker statements, and the record contains no indication that the judge knew any of the victim's co-workers. The court concluded that the high-end was appropriate, adopted the stipulated offender score information, and sentenced Mr. Nelson according to the State's recommendation of 512 months, calculated by adding 374 months from count 1 to the sentencing enhancements from counts 1, 2 and 3. Id. at 26-28; Resp't Br. App. "A" at 1-5.

On July 19, 2017, Mr. Nelson filed this pro se personal restraint petition (PRP). He later obtained a stay of the PRP and filed an untimely direct appeal on July 31, 2018, with a motion to enlarge time, arguing all of the identical issues asserted in this PRP. State v. Nelson, No. 52228-4-II. His motion to stay the PRP was granted. Commissioner rulings August 27, 2018 and March 28, 2019. When Mr. Nelson failed to show extraordinary circumstances to enlarge time, the direct appeal was dismissed by Commissioner's Ruling on September 11, 2018. Subsequent motions to modify and for discretionary review were also denied. The mandate issued on July 18, 2019 and the stay of this PRP was lifted. Commissioner's Ruling August 5, 2019; RCW 10.73.090(3)(b).

Upon preliminary review, the court determined that a response was required by the State. RAP 16.8.1(d). The State responded, and Mr. Nelson replied. Upon initial consideration, the court determined that the petition was not frivolous, referred the matter to a panel for decision, and appointed counsel to file a supplemental brief.

Commissioner's ruling January 10, 2018; RAP 16.11(b); RCW 10.73.150(4). Appointed counsel filed supplemental briefing, and the State responded.

PRP STANDARDS

Mr Nelson is under restraint at the Walla Walla State Penitentiary pursuant to the convictions. His petition was timely filed ten months from sentencing. RCW 10.73.090(1). He has not filed prior petitions.

Our review of a collateral proceeding is different than our standard of reviewing a direct appeal. A personal restraint petition is not a substitute for an appeal. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 823-24, 650 P.2d 1103 (1982). To obtain relief in a personal restraint petition, the petitioner must show actual and substantial prejudice resulted from alleged constitutional errors or for alleged non-constitutional errors a fundamental defect that inherently results in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To avoid dismissal, the petitioner must support claims with facts and not merely bald or conclusory allegations. Id. at 813-14. The supporting evidence must be based on "more than speculation, conjecture, or inadmissible hearsay," and failure to meet this calls for dismissal of the petition. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). This court will dismiss a petition if it "fails to present an arguable basis for collateral relief either in law or in fact, given the constraints of the personal restraint petition vehicle." In re Pers. Restraint of Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577 (2015).

A. Firearm Enhancement

Mr. Nelson argues that his sentence is erroneous under State v. Soto, 177 Wn.App. 706, 714, 309 P.3d 596 (2013), which held that the firearm enhancement does not apply to an unranked felony. The State responds that we should revisit and reject the holding in Soto.

The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides a firearm enhancement to sentences for crimes committed when the offender was armed with a firearm. RCW 9.94A.533. The first section of this statute provides that "[t]he provisions of this section apply to the standard sentence ranges determined by RCW 9.94A.510 or 9.94A.517." RCW 9.94A.533(1). RCW 9.94A.510 is the "Table 1" sentencing grid. RCW 9.94A.517 is the drug offense sentencing grid (inapplicable in this case).

The Table 1 sentencing grid calculates an offender's standard range using the individual's offender score and the offense's seriousness level. The offense of animal cruelty in the first degree is defined by RCW 16.52.205(1)-(3). It is a class C felony. RCW 16.52.205(4). Mr. Nelson was charged with animal cruelty by intentionally shooting and killing a dog, a violation of RCW 16.52.205(1). No seriousness level has been assigned to that means of committing first degree animal cruelty. RCW 9.94A.515. Therefore, a standard sentence range cannot be determined for that means of committing the offense from RCW 9.94A.510, the Table 1 sentencing grid. "Unranked offense" is the term commonly applied to offenses that have not been assigned a...