In re Sylvester

520 P.3d 1123

In the MATTER OF the Personal Restraint of Nathanial Samy Allen SYLVESTER, Petitioner.

No. 56001-1-II (consolidated with No. 56005-4-II

No. 56011-9-II)

Court of Appeals of Washington, Division 2.

Filed December 6, 2022

Jared Berkeley Steed, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250 Seattle, WA, 98121-1820, for Petitioner.

Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000 1013 Franklin Street, Vancouver, WA, 98666-5000, for Respondent.

PUBLISHED OPINION

Glasgow, C.J.

¶1 Nathanial Samy Allen Sylvester pointed a gun at his girlfriend, gave a fake name to avoid arrest, and spat on a correctional officer. In 2019, Sylvester pleaded guilty to criminal impersonation, custodial assault, third degree assault, and unlawful possession of a firearm under three separate cause numbers. The parties agreed to recommended sentences that would impose the bottom of the standard range for each crime, but Sylvester would serve the sentences consecutively, making the sentence an exceptional one.

¶2 Sylvester's offender score for each charge included 1 point for a prior conviction for possession of a controlled substance. The prior possession conviction is now void under State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021). More than one year after his judgment and sentences became final, Sylvester filed three CrR 7.8 motions seeking resentencing using corrected offender scores. The trial court transferred them to this court as personal restraint petitions (PRPs).

¶3 Sylvester argues the trial court should have granted the CrR 7.8 motions instead of transferring them. The State contends Sylvester's PRPs are time barred, he cannot establish prejudice, and, even if we were to remand, he has breached his plea agreement.

¶4 We hold that Sylvester's CrR 7.8 motions were not time barred and that he is entitled to relief. We grant Sylvester's PRPs and remand for resentencing. On remand, the State may ask the trial court to first determine whether Sylvester breached his plea agreement.

FACTS

¶5 When he pleaded guilty in 2019, Sylvester's criminal history included two convictions that were "strike" offenses at the time—second degree robbery and second degree assault. In September 2019, to avoid risking conviction for a third "strike" offense of second degree assault, which would result in a mandatory life sentence, Sylvester pleaded guilty to criminal impersonation, custodial assault, third degree assault, and first degree unlawful possession of a firearm in a global plea agreement spanning three cause numbers.¹

¶6 Sylvester's offender score was 7 points for each charge, and it included 1 point for a prior conviction for possession of a controlled substance. The standard range for both custodial assault and third degree assault was 33 to 43 months, and the standard range for first degree unlawful possession of a firearm was 67 to 89 months. The criminal impersonation charge was an unranked felony with a standard range of 0 to 365 days. Sylvester stipulated to a plea agreement where the State agreed to recommend a sentence at the bottom of the standard range for each charge, including zero days for the impersonation charge. But the sentences would run consecutively, for a total exceptional upward sentence of 133 months. The plea agreement stated that if Sylvester appealed or filed a CrR 7.8 motion, that would constitute a breach of the plea agreement.

¶7 During the plea colloquy, the trial court told Sylvester the standard ranges for his charges, explaining that the ranges were "all based on an offender score of [7]," and the State could seek an increased sentence if it later discovered additional criminal history. Verbatim Report of Proceedings (Sept. 18, 2019) at 32. The trial court accepted Sylvester's guilty plea, finding it knowing, voluntary, and intelligent.

¶8 The trial court followed the plea agreement, imposing low-end sentences but requiring Sylvester to serve them consecutively. The trial court imposed a total term of confinement of 133 months, an exceptional sentence. The trial court found that Sylvester and the State were "in agreement as to a recommended sentence above the standard range, and further that it is in the interest of justice to order an exceptional sentence above the standard range." Clerk's Papers (CP) at 70, 119, 140. Sylvester's judgment and sentences were entered in September 2019. He did not appeal.

¶9 In February 2021, the Washington Supreme Court held that Washington's strict liability drug possession statute was unconstitutional. Blake , 197 Wash.2d at 195, 481 P.3d 521. In July 2021, Sylvester filed three identical CrR 7.8 motions, one for each cause number, arguing that he was entitled to resentencing under an offender score that did not include the now-void simple possession conviction. The trial court found that although the CrR 7.8 motions were not barred by the one-year time limit in RCW 10.73.090, Sylvester had "not made a substantial showing that [he] is entitled to relief or that an evidentiary hearing will be necessary to resolve the motion on the merits." CP at 148. The trial court transferred the motions to this court as PRPs. This court consolidated the three cause numbers.

ANALYSIS

¶10 We may dismiss a PRP if the petitioner fails to make a prima facie showing of error, remand for a reference hearing "if the petitioner makes a prima facie showing but the merits of the contentions cannot be determined solely from the record," or "grant the PRP without further hearing if the petitioner has proved actual prejudice or a miscarriage of justice." In re Pers. Restraint of Stockwell , 160 Wash. App. 172, 177, 248 P.3d 576 (2011).

I. TIME BAR

¶11 RCW 10.73.090(1) provides, "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." The time bar does not apply if a petitioner's judgment and sentence is facially invalid. In re Pers. Restraint of Weber , 175 Wash.2d 247, 255, 284 P.3d 734 (2012). "A reviewing court may use the documents signed as part of a plea agreement to determine facial invalidity if those documents are relevant in assessing the validity of the judgment and sentence." In re Pers. Restraint of McKiearnan , 165 Wash.2d 777, 781-82, 203 P.3d 375 (2009).

¶12 Sylvester argues that the one-year time bar in RCW 10.73.090 does not apply because Washington's simple possession statute has been held unconstitutional, rendering his judgment and sentences facially invalid because they contain an incorrect offender score.² The State responds that a judgment and sentence is not invalid on its face where the trial court imposes "an appropriate sentence within what would have been a correct sentencing range." Resp. to PRP at 11. The State argues that the trial court did not exceed its sentencing authority because Sylvester stipulated to the exceptional sentence and "a 133-month sentence could still be imposed by running each of the counts consecutively at a different point within the standard sentencing range." Id. at 14.

¶13 A conviction based on an unconstitutional statute cannot be included in an offender score, even if the defendant agreed to a guilty plea with a sentencing recommendation based on the incorrect offender score. State v. LaBounty , 17 Wash. App. 2d 576, 581-82, 487 P.3d 221 (2021). The offender score is facially a part of the judgment and sentence. In re Pers. Restraint of Goodwin , 146 Wash.2d 861, 867, 50 P.3d 618 (2002). An excessive sentence based on an improperly calculated offender score in a negotiated plea agreement will render a judgment and sentence facially invalid. Id. at 869-70, 50 P.3d 618.

¶14 The State relies on In re Personal Restraint of Toledo-Sotelo , 176 Wash.2d 759, 297 P.3d 51 (2013), to argue that Sylvester's judgment and sentence is not facially invalid because Sylvester stipulated to the exceptional sentence and the trial court could impose the same sentence with a corrected offender score by keeping the sentence for criminal impersonation at zero days, imposing the high end of the correct standard range for the other offenses, and running the sentences consecutively. Toledo-Sotelo received a standard-range sentence based on an offender score of 3 and an offense seriousness level of XII; his offender score should have been 4 and the offense seriousness level X. Toledo-Sotelo , 176 Wash.2d at 765, 767, 297 P.3d 51. The Supreme Court explained that the judgment and sentence remained valid because "the trial court coincidentally used the sentencing range that resulted from the correct offender score and seriousness level" and sentenced Toledo-Sotelo in the middle of that standard range. Id. at 761, 297 P.3d 51.

¶15 The Toledo-Sotelo court distinguished both Goodwin and In re Personal Restraint of Johnson , 131 Wash.2d 558, 933 P.2d 1019 (1997). It explained that in Johnson , the trial court sentenced the defendant to the bottom of an incorrectly calculated standard range, rendering the judgment and sentence facially invalid, and the Supreme Court remanded for resentencing "[b]ecause there was evidence in the record that the court intended to sentence the petitioner to the minimum sentence within the standard range." Id. at 769, 297 P.3d 51. In Goodwin , the defendant pleaded guilty and agreed to an incorrect offender score containing washed out juvenile convictions. 146 Wash.2d at 867, 50 P.3d 618. Despite the negotiated plea agreement, the Supreme Court held that the incorrect offender score rendered the judgment and sentence facially invalid because Goodwin's "sentence is as a matter of law in excess of what is statutorily permitted for his crimes given a correct offender score." Id . at 875-76, 50 P.3d 618. These cases were distinct...