State v. Fletcher

497 P.3d 886

STATE of Washington, Appellant,

v.Olajide Adel FLETCHER, Respondent.

No. 37661-3-III

Court of Appeals of Washington, Division 3.

FILED OCTOBER 28, 2021

Kevin James McCrae, Grant County Prosecutor's Office, 35 C. St. Nw Po Box 37 Ephrata, WA, 98823-0037, for Appellant.

Gregory Charles Link, Christopher Mark Petroni, Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Respondent.

PUBLISHED OPINION

Staab, J.

¶1 This case raises several issues of first impression pertaining to the collateral attack of a sentence. Olajide Fletcher pleaded guilty to a reduced charge of second degree assault with a firearm and one count of unlawful possession of a firearm. Pursuant to the plea agreement, the State recommended an exceptional sentence of 120 months (the statutory maximum). The sentencing judge followed the recommendation. Shortly after sentencing Mr. Fletcher filed a motion to modify the judgment and sentence pursuant to CrR 7.8. Three years later, on July 15, 2019, Mr. Fletcher filed a second CrR 7.8 motion, contending that the court miscalculated his offender score and standard range sentence before imposing the exceptional sentence. Following a series of hearings, the superior court granted Mr. Fletcher's motion, holding that it was timely, good cause was shown for failing to bring the offender score issue in his first motion, and the miscalculated offender score prejudiced Mr. Fletcher. At the resentencing hearing, the court imposed a high-end standard range sentence of 77 months.

¶2 The State filed this direct appeal and we reverse the trial court's decision. We hold that a judgment and sentence is facially invalid when it contains a miscalculated standard range even when the defendant receives the agreed-upon exceptional sentence. While Mr. Fletcher's motion was not untimely, we conclude that it was successive because Mr. Fletcher did not establish good cause for failing to raise the issue in his first motion. Ordinarily, when the court of appeals determines that a collateral attack is timely but successive, we transfer the case to the Supreme Court. In this case, however, since the superior court addressed the motion on the merits, and we are reviewing the case in our appellate capacity and not as original jurisdiction, the transfer provisions of RAP 16.5(c) do not apply and we retain appellate jurisdiction to decide the case. Because Mr. Fletcher's motion was successive without good cause, we reverse the superior court's order granting Mr. Fletcher's motion and reinstate the original sentence.

FACTS

¶3 In November 2015, the State charged Olajide Adel Fletcher with one count of first degree assault with a firearm or deadly weapon. The charge alleged that Mr. Fletcher shot Alex Tauveve five times in the legs. According to Mr. Fletcher, Mr. Tauveve took Mr. Fletcher's televisions and when Mr. Fletcher tried to recover the televisions, Mr. Tauveve pulled a gun on him. Mr. Fletcher overpowered Mr. Tauveve, taking the gun and shooting him. Mr. Fletcher and his girlfriend fled to Montana, where U.S. Marshalls took them into custody.

¶4 The State agreed to reduce the first degree assault charge to second degree assault, and refrain from filing charges against Mr. Fletcher's girlfriend if Mr. Fletcher would stipulate to an exceptional sentence of 120 months, the statutory maximum. The statement on plea of guilty identified Mr. Fletcher's offender score as "8" on the second degree assault count, with a standard range of 53-70 months and a firearm enhancement of 36 months, and an offender score of "5" on the unlawful possession count, with a standard range of 41-54 months. The statement did not include Mr. Fletcher's criminal history, although it indicated that it was attached as a separate document. The parties agreed that the prosecutor would recommend "an exceptional sentence/incarceration of 84 months on Count 1 (with a three yr deadly weapon enhancement), 41 months on Count 2 to run concurrent, for a total of 10 years." Clerk's Papers (CP) at 14. Mr. Fletcher "agree[d] there are substantial and compelling reasons for an exceptional sentence in this case." CP at 19.

¶5 Mr. Fletcher was sentenced on February 23, 2016. His offender scores for the two charges were calculated as "8" and "5", based on his criminal history of one adult conviction for first degree theft, a juvenile conviction for second degree assault, and juvenile convictions for two counts of attempted second degree assault. The parties also agreed that Mr. Fletcher had a prior third degree assault conviction that washed out. Based on the offender score, the parties calculated the standard range sentence as 89 to 106 months. The sentencing court followed the recommendation and imposed an exceptional sentence of 120 months.¹

¶6 On March 18, 2016, Mr. Fletcher filed a motion to modify the judgment and sentence pursuant to CrR 7.8, seeking a standard range sentence of 106 months in confinement. The superior court transferred the motion to this court for consideration as a personal restraint petition. This court dismissed the petition as frivolous, noting that Mr. Fletcher stipulated to the exceptional sentence. Therefore he could not challenge the exceptional sentence he agreed to without challenging the entire plea agreement, which he did not do. See In re Pers. Restraint of Fletcher , No. 34430-4-III (Wn. Ct. App. Mar. 3, 2017).

¶7 Three years later Mr. Fletcher filed a second CrR 7.8 motion, arguing that the sentencing court incorrectly calculated his offender score, thus rendering his sentence unlawful. Specifically, he asserted that the court incorrectly included his two juvenile second degree attempted assaults from May 2006 in his offender score when those crimes should have washed out pursuant to RCW 9.94A.525(4) and State v. Moeurn , 170 Wash.2d 169, 240 P.3d 1158 (2010). Mr. Fletcher argues that his correct offender score on the second degree assault charge was 4, rather than 8, and the score for the unlawful possession of the firearm was 3 rather than 5.

¶8 In response, the State argued that the motion was untimely, barred as successive under RCW 10.73.140, and failed to establish prejudice because the State and Mr. Fetcher negotiated the exceptional sentence as part of the plea agreement, with no reference to the offender score or standard range.

¶9 Mr. Fletcher then responded by filing a declaration certifying that his previous petition did not present similar grounds and arguing that he had good cause for not raising the offender score in his previous petition because he did not have access to his judgment and sentence. Mr. Fletcher argued that the lack of access was "an external objective impediment" that prevented him from raising the issue. According to Mr. Fletcher, he requested a copy of his judgment and sentence from defense counsel, who told Mr. Fletcher he could not have the judgment in his personal possession when he was transferred to prison but that he would receive a copy when he arrived at the corrections center. Mr. Fletcher did not receive the judgment when he arrived at the corrections center, and when he requested his legal documents from the law librarian, he only received his statement on plea of guilty. Mr. Fletcher claims the plea statement listed his offender scores but did not contain any information regarding his criminal history, such as the dates of the crimes and the sentences. Mr. Fletcher asserted that he did not receive a copy of his judgment and sentence, containing his criminal history, until the State filed a response to his first personal restraint petition in July 2016. At that time, his motion was already filed and before this court for consideration.

¶10 Ultimately, the superior court held that Mr. Fletcher's judgment was facially invalid, and thus his motion was timely. The court also found good cause for not including the issue in his first motion. Finally, the court found prejudice, concluding that if the sentencing court had known the parties relied on an erroneous offender score and standard range when they negotiated the agreement, the sentencing court likely would have departed from the agreement and imposed a lower sentence. Accordingly, the court held that Mr. Fletcher was entitled to re-sentencing with the proper offender score and proper standard range. The court held that Mr. Fletcher's stipulation to the firearm enhancement and the stipulation to the exceptional sentence remained in place and could not be withdrawn, but that Mr. Fletcher could argue for a sentence shorter than 120 months. At resentencing, the court ordered a high-end standard range sentence of 77 months.

¶11 The State filed this timely appeal.

ANALYSIS

A. WAS THE CRR 7.8 MOTION TIMELY ?

¶12 We are asked to decide whether the miscalculation of a petitioner's offender score renders a judgment and sentence facially invalid when the trial court does not impose a standard range sentence but instead imposes the exceptional sentence recommended by the parties. We hold that when the miscalculation of an offender score and standard range sentence can be determined from the judgment,² it renders the judgment facially invalid even when the court imposes the recommended exceptional sentence.

¶13 Mr. Fletcher filed his collateral attack in superior court as a motion for relief from judgment under CrR 7.8(b). The procedures for filing such a motion are governed by chapter 10.73 RCW. CrR 7.8(b). Similar to other collateral challenges, a motion under CrR 7.8(b) may not 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." RCW 10.73.090(1).

¶14 "Generally, a judgment and sentence is facially invalid ‘if it exceeds the duration allowed by statute and the alleged defect is evident on the face of the document without further elaboration.’ " State v. Chambers , 176 Wash.2d 573,...