State v. Edwards

514 P.3d 692

STATE of Washington, Respondent,

v.Nelson Lamont EDWARDS, Jr. Appellant.

No. 38069-6-III

Court of Appeals of Washington, Division 3.

FILED AUGUST 2, 2022

Dennis W. Morgan, Attorney at Law, Po Box 1019, Republic, WA, 99166-1019, for Appellant(s).

Gregory Lee Zempel, Kittitas County Prosecutor's Office, 205 W. 5th Ave., Ste. 213, Ellensburg, WA, 98926-2887, Matthew David Mills, Kittitas County Prosecutor's Office, 205 W. 5th Ave., Ste. 213, Ellensburg, WA, 98926-2887, for Respondent(s).

Pennell, J.

¶ 1 Nelson Edwards was convicted of assault, obstruction of a police officer, and simple possession of controlled substances. Shortly after Mr. Edwards filed his notice of appeal, the Washington Supreme Court issued its decision in State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021), invalidating Washington's strict liability drug possession statute. The State recognized Mr. Edwards was entitled to relief under Blake and arranged for a prompt resentencing hearing. The hearing took place during the summer of 2021, while Mr. Edwards's appeal remained pending. Prior to formal entry of an amended judgment and sentence, the parties did not first obtain permission of this court under RAP 7.2(e) to amend the decision being reviewed.

¶ 2 The State's desire to facilitate prompt relief under Blake was admirable. However, given the pendency of Mr. Edwards's appeal, the trial court lacked authority to issue an amended judgment and sentence without the parties first obtaining leave from the Court of Appeals. The post- Blake amended judgment and sentence is therefore void and unenforceable. Given the original judgment and sentence fails to comport with Blake , Mr. Edwards's case must be remanded for resentencing.

BACKGROUND

¶ 3 In December 2020, Mr. Edwards was convicted at a bench trial of one count of third degree assault, one count of obstructing a law enforcement officer, and one count of possession of a controlled substance. Sentencing took place the following month. At sentencing, Mr. Edwards was assigned an offender score of seven based in part on two prior convictions for possession of controlled substances.¹ Mr. Edwards received a prison-based drug offender sentencing alternative of 19 months in prison. The judgment and sentence was entered on January 25, 2021.

¶ 4 Mr. Edwards filed a timely appeal on February 19, 2021. Less than a week later, the Washington Supreme Court held in Blake that Washington's strict liability drug possession statute, former RCW 69.50.4013(1) (2017), was unconstitutional and therefore void. 197 Wash.2d at 195, 481 P.3d 521.

¶ 5 While his case was pending review, Mr. Edwards was brought before the trial court for a Blake resentencing. Prior to formal entry of an amended judgment and sentence, the parties neither sought nor otherwise obtained authorization from this court for resentencing pursuant to RAP 7.2(e). At resentencing, the trial court eliminated all drug-related convictions from consideration either as current or prior convictions. The court then imposed a prison-based drug offender sentencing alternative of 12 months’ incarceration, followed by 7 months’ community custody. The amended judgment and sentence was entered on July 15, 2021. Neither party appealed from the amended judgment.

ANALYSIS

¶ 6 The parties correctly agree that Mr. Edwards's January 25, 2021, judgment and sentence was imposed in violation of Blake . On appeal, their dispute focuses on the July 15, 2021, amended judgment and sentence. The parties argue over whether the resentencing court miscalculated Mr. Edwards's sentencing range based on the theory that some of Mr. Edwards's prior convictions should have washed out from the offender score due to the invalidity of the simple possession convictions.²

¶ 7 The parties’ disagreement is misfocused. The merits of the July 15, 2021, amended judgment and sentence is not a matter that is properly before this court. The amended judgment is not the subject of Mr. Edwards's notice of appeal. And more importantly, the amended disposition was issued without authority in violation of RAP 7.2(e).

¶ 8 RAP 7.2 limits a trial court's authority to act on a case during the pendency of an appeal. Under RAP 7.2(e), it is possible for a trial court to change or modify a decision that is under review. However, doing so requires permission from the appellate court prior to formal entry of an amended trial court decision. RAP 7.2(e).

¶ 9 As set forth above, the trial court issued an amended judgment and sentence in Mr. Edwards's case without leave of this court under RAP 7.2(e). Given this circumstance, the July 21, 2021, amended judgment and sentence is invalid and unenforceable. See Tinsley v. Monson & Sons Cattle Co. , 2 Wash. App. 675, 677, 472 P.2d 546 (1970) (holding proceedings in superior court subsequent to the filing of a notice of appeal were void and unenforceable for want of superior court jurisdiction). The only judgment and sentence entered with lawful trial court authority is the one filed on January 25, 2021. We therefore limit our review to the issues raised by this original disposition.

¶ 10 With respect to the original January 25, 2021, judgment and sentence, it is uncontested that Mr. Edwards's current conviction for simple possession of a controlled substance must be...