Nos. 35326-1-II; 35840-9-II; 36438-7-II.The Court of Appeals of Washington, Division Two.
November 14, 2007.
HUNT, J.
Patrick Boyd Drum appeals a superior court order dismissing as untimely his July 2006 CrR 7.8 motion challenging his May 2005 amended judgment and sentence. He argues that we should reach additional issues for the first time on appeal even though he did not appeal his 2005 judgment and sentence and he did not raise these issues in his July 2006 CrR 7.8 motion in the trial court. Drum also filed a Statement of Additional Grounds for Review[1] (SAG) and two personal restraint petitions (PRP), which we have consolidated with this appeal. We affirm the trial court’s dismissal of Drum’s July 2006 CrR 7.8 motion, and we deny both PRPs as untimely.
FACTS I. Plea Agreement and Sentencing
The State charged Patrick Boyd Drum with residential burglary and attempted third degree assault of a police officer. Drum agreed to plead guilty to the amended charge of second degree burglary. In addition to reducing the charge, the State agreed to recommend a drug offender sentencing alternative[2] (DOSA) sentence. Drum’s plea agreement recited his extensive criminal history, which included an October 1994 first degree burglary he committed in Clallam County as a juvenile. Drum’s offender score was nine; the standard sentencing range for his current offense was 51 to 68 months confinement. On February 22, 2005, the sentencing court accepted Drum’s guilty plea, imposed the recommended DOSA sentence, and required Drum to serve 30 months in confinement.
II. DOSA Ineligibility and Resentencing
In March 2005, the Department of Corrections (DOC) notified the sentencing court, defense counsel, and the deputy prosecutor that there appeared to be an error in Drum’s sentencing. The letter stated:
Mr. Drum was received at the Washington Corrections Center on February 24, 2005 on one count of Burglary 2nd with an offense date of January 1, 2005. After review of the Judgment and Sentence, it appears there may be an error in sentencing.
Per RCW 9.94A.660(1)(a)(b) [a]n offender is eligible for the special drug offender sentencing alternative if: “The offender is convicted of a felony that is not a violent offense,” and “[t]he offender has no current or prior convictions for a sex offense or violent offense in this state, another state, or the United States.” Since [Drum’s criminal history listed in the Judgment and Sentence] reflects a prior violent offense (Burglary 1st), it appears Mr. Drum would be ineligible for the DOSA sentencing option on this new conviction.
Please review this information and advise [DOC] if you still feel the DOSA sentence is appropriate. If you determine that Mr. Drum is not eligible, we respectfully request the court amend the Judgment and Sentence to remove the DOSA option and sentence him within the standard range.
Clerk’s Papers (CP) at 38.
On May 20 and 27, 2005, the superior court held hearings to consider the effect of this letter. Defense counsel agreed that Drum’s juvenile adjudication for a violent offense made him ineligible for a DOSA sentence. It appears that at the May 27, 2005 hearing, defense counsel conceded the only option was to resentence Drum without considering a DOSA sentence; defense counsel concurred with the State’s new recommendation of a low-end standard-range sentence for the plea-bargained second-degree burglary. The sentencing court accepted the State’s recommendation and imposed a 51-month low-end standard-range sentence[3] in place of the previous DOSA sentence.
Drum did not appeal.
III. Post-Sentencing A. July 2006 CrR 7.8 Motion
In July 2006, Drum filed a pro se CrR 7.8 motion to amend his May 2005 judgment and sentence. He argued that (1) the sentencing court should not have considered his juvenile first degree burglary as a “conviction” for purposes of his offender score or as a bar to his DOSA eligibility; and (2) the superior court could address such “sentencing” error at any time. Instead of transferring Drum’s motion to us as a PRP under CrR 7.8(c)(2), the superior court summarily denied his CrR 7.8 motion as untimely.[4]
Drum appeals this August 18, 2006 order dismissing his CrR 7.8 motion. B. December 2006 PRP
In December 2006, Drum filed a second CrR 7.8 motion in the superior court. This time, the superior court transferred Drum’s motion to us for consideration as a PRP under CrR 7.8(c)(2). Accepting the transfer, we consolidated this PRP (cause number 35840-9-II) with Drum’s direct appeal from the trial court’s dismissal of his July 2006 CrR 7.8 motion. See
Ruling Consolidating Appeal (filed 2/5/2007).
C. June 2007 PRP
In June 2007, Drum filed a PRP directly with our court. At his request, we consolidated this second PRP (cause number 36438-7-II) with the direct appeal and the previously consolidated PRP.[5]
analysis I. Direct Appeal
On appeal, Drum challenges (1) the superior court’s summary dismissal of his July 2006 CrR 7.8 motion as untimely and (2) his May 2005 resentencing on additional grounds he failed to include in his July 2006 CrR 7.8 motion.[6] We reject these challenges as untimely.
A. Dismissal of July 2006 CrR 7.8 Motion as Untimely
Drum first argues that the superior court erred when it dismissed his July 2006 CrR 7.8 motion as untimely. We disagree.
CrR 7.8 motions are subject to RCW 10.73.090(1), which 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.
Drum filed his July 2006 CrR 7.8 motion more than one year after his amended judgment and sentence became final in May 2005. RCW 10.73.090(3)(a). Thus, the superior court properly dismissed Drum’s motion as time barred unless he can show that (1) the time bar does not apply because the judgment and sentence is facially invalid or because it was not rendered by a court of competent jurisdiction, or (2) one or more of the six time-bar exceptions enumerated in RCW 10.73.100[7] applies to each of the otherwise time-barred issues. Accordingly, we first address the threshold issue of whether this statutory one-year time limit applies to Drum’s CrR 7.8 motion.
1. Judgment and sentence not facially invalid
In his July 2006 CrR 7.8 motion, Drum argued to the superior court that under Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L.Ed.2d 311(1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the sentencing court could not consider his juvenile adjudication as a “conviction” for purposes of his criminal history, include it in his offender score, or use it to find him ineligible for a DOSA sentence. He also argued that the Juvenile Justice Act of 1977[8] “expressly provides that juvenile adjudications are not
`criminal convictions,'” CP at 77 (citing RCW 13.04.240, State v. Schaaf, 109 Wn.2d 1, 743 P.2d 240 (1987); State v. Bird, 95 Wn.2d 83, 622 P.2d 1262
(1980); and In re Personal Restraint of Frederick, 93 Wn.2d 28, 604 P.2d 953 (1980)).[9] Concluding that none of these issues have merit, we uphold the trial court’s dismissal of Drum’s CrR 7.8 motion as untimely.
Our Supreme Court recently rejected Drum’s argument that under Jones
and Apprendi juvenile adjudications cannot be included in offender scores because they lack the necessary procedural safeguards. State v. Weber, 159 Wn.2d 252, 258-65, 149 P.3d 646 (2006), cert. denied, 127 S. Ct. 2986, 168 L. Ed. 2d 714 (2007). Our state courts have also rejected Drum’s argument that RCW 13.04.240 and Frederick preclude the sentencing court’s consideration of prior juvenile adjudications when determining DOSA eligibility. State v. Johnson, 118 Wn. App. 259, 76 P.3d 265 (2003) review denied, 151 Wn.2d 1021 (2004); State v. Smathers, 109 Wn. App. 546, 549, 36 P.3d 1078 (2001), review denied, 146 Wn.2d 1017 (2002).
Furthermore, both Schaaf and Bird addressed juvenile sentencing under the Juvenile Justice Act of 1977, chapter 13.40 RCW, not adult sentencing under the Sentencing Reform Act[10] (SRA). See Shaaf, 109 Wn.2d at 4 Bird, 95 Wn.2d at 84. And although these cases acknowledged differences between adult and juvenile offenses, neither addressed whether a juvenile adjudication could later count as a “conviction” under the SRA, which applies to all adult sentences. Accordingly, these cases do not support Drum’s arguments.
Because Drum’s CrR 7.8 arguments lack merit, he fails to show that his judgment and sentence is facially invalid.
2. No exceptions to the one-year time bar apply
Furthermore, because Drum’s arguments lack merit, he cannot show that any of RCW 10.73.100‘s exceptions apply to relieve him from the one-year time bar. We hold, therefore, that the trial court did not err when it dismissed Drum’s July 2006 CrR 7.8 motion as untimely.
B. Additional Arguments
Drum’s appellate counsel raises several other arguments that, in light of Drum’s plea agreement, the sentencing court lacked the ability to amend Drum’s May 2005 sentence. These arguments, which Drum did not raise in his CrR 7.8 motion below, are also untimely.
1. State v. Gaut
The superior court’s order dismissing Drum’s CrR 7.8 motion as untimely was appealable as of right under RAP 2.2. But the scope of our review is limited to the issues he raised in that motion below. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). “On review of an order denying a motion to vacate, only `the propriety of the denial not the impropriety of the underlying judgment’ is before the reviewing court.”Gaut, 111 Wn. App. at 881 (quoting Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980)).
Drum cannot convert an unappealed final judgment into an appeal of that judgment by moving to vacate or to amend under CrR 7.8 and then appealing the superior court’s denial of the motion. Gaut, 111 Wn. App. at 881. Accordingly, under Gaut, we cannot reach new issues relating to Drum’s amended judgment and sentence, which he now attempts to raise for the first time on direct appeal from dismissal of his CrR 7.8 motion.
2. RAP 2.4(b)
Focusing on the phrase “[e]xcept as provided in rule 2.4(b),” in RAP 2.4(c), Drum’s appellate counsel argues that we can nevertheless review the May 2005 amended judgment and sentence under RAP 2.4(b). We disagree.
Drum does not persuade us to consider his untimely arguments. The issues he attempts to raise for the first time on appeal from dismissal of his 2006 CrR 7.8 motion are issues he could have raised on direct appeal from his May 2005 amended judgment and sentence. But he did not file such an appeal; and there appears to be no justification for this failure. Nor does he persuade us that RAP 2.4(b) somehow applies to bring his May 2005 amended judgment and sentence before us on direct appeal from dismissal of his CrR 6.8 motion.
C. SAG Issues
Drum raises several issues in his pro se SAG. Because we affirm the superior court’s dismissal of his CrR 7.8 motion as untimely and none of Drum’s SAG arguments implicate the facial validity of the judgment and sentence or any potential exception to the one-year time bar, we do not reach the merits of Drum’s SAG challenges to this dismissal. To the extent he is raising additional issues not related to dismissal of his CrR 7.8 motion, as discussed above, those issues are not properly before us. And to the extent he is claiming that his appellate counsel made errors in his opening brief, these claimed errors are not relevant to our analysis.
II. Personal Restraint Petitions
In his PRPs, Drum essentially seeks “specific performance” of his original plea agreement, namely remand for a DOSA resentencing. He argues (1) that under the 2005 amendments to the DOSA statute, he is now eligible for a DOSA sentence because his juvenile adjudication was more than ten years old; (2) the trial court erred by failing to advise him about and to extend to him the option of requesting “specific performance” of his plea bargain; and (3) he received ineffective assistance when his trial counsel similarly failed to inform him that “specific performance” was an option, leading him (Drum) to believe that the only way to preserve his plea bargain (reduced charges) was to be sentenced within the standard range. These arguments fail because Drum’s PRPs are time barred.
A. Time Bar
A PRP is a collateral attack on a judgment. RCW 10.73.090(2). As we noted at the beginning of analysis, RCW 10.73.090(1) prohibits the filing of a petition or collateral attack on a criminal judgment and sentence more than one year after the judgment becomes final so long as the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
Because Drum did not file a direct appeal from his May 2005 amended judgment and sentence, it became final when the sentencing court filed it on May 27, 2005. See RCW 10.73.090(3)(a). Drum filed these two PRPs more than one year later. Accordingly, before we can reach the merits of any of Drum’s PRP arguments, he must show that either (1) the one-year time bar does not apply because the judgment and sentence is facially invalid or because it was not rendered by a court of competent jurisdiction, or (2) one or more of the six exceptions to the time bar stated in RCW 10.73.100[11] applies to each of his otherwise time-barred arguments.[12] He fails to make either showing.
B. December 2006 PRP
In his December 2006 PRP, Drum (1) asks us to “reinstate” his DOSA sentence, arguing that under the 2005 amendments to the DOSA statute he is now eligible for a DOSA sentence because his juvenile adjudication was more than ten years old; and (2) contends that this PRP is not time barred because the 2005 legislative amendments constitute a significant, retroactive, material change in the law under RCW 10.73.100(6). We disagree.
RCW 10.73.100(6) provides that the time bar does not apply when:
There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
(Emphasis added).
At the time Drum committed the current offense, former RCW 9.94A.660(1) (2003) provided:
An offender is eligible for [DOSA] if:
(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4); [and] (b) The offender has no . . . prior convictions for a . . . violent offense in this state, another state, or the United States.
(Emphasis added).
In 2005, the Legislature amended RCW 9.94A.660(1) to provide:
An offender is eligible for [DOSA] if:
(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4);
(b) The offender has no . . . prior convictions for a . . . violent offense within ten years before conviction of the current offense, in this state, another state, or the United States.
(Emphasis added); see Laws of 2005, ch. 460 § 1.[13]
In addition to broadening the class of offenders eligible for DOSA, the Legislature specified that the 2005 amendment was effective October 1, 2005, see Laws of 2005, ch. 460 § 3, and provided that the 2005 amendments applied only “to sentences imposed on or after the effective date of this act.” Laws of 2005, ch. 460 § 2 (emphasis added). In so doing, the Legislature expressly indicated that the amendment did not
apply retroactively. Furthermore, case law does not support that there are sufficient reasons to require retroactive application of the changed standard. See State v. Kane, 101 Wn. App. 607, 608, 614-18, 5 P.3d 741 (2000) (applying RCW 10.01.040[14] and concluding that the 1999 amendment to the DOSA statute, broadening the class of offenders eligible for DOSA, did not apply retroactively to an offender who committed his offense before the effective date of the amendment).
In failing to show that the 2005 DOSA amendment was retroactive, Drum has also failed to establish that his PRP falls under the RCW 10.73.100(6) exception to the one-year time bar. Accordingly, we deny his December 2006 PRP as untimely.
C. June 2007 PRP
In his June 2007 PRP, Drum appears to argue that on discovering he was not eligible for the DOSA, (1) the trial court erred by failing to advise him about the option of requesting specific performance of the plea bargain; and (2) he received ineffective assistance of counsel because his trial counsel similarly failed to inform him of the specific performance option and, instead, he (Drum) believed the only way to preserve Drum’s plea bargain was to agree to the State’s new low-end standard-range sentence recommendation.[15] But as with his December 2006 PRP, Drum’s June 2007 PRP is also time barred.[16]
In an apparent attempt to overcome the one-year statutory time bar, Drum argues that (1) we have the inherent authority to correct an erroneous sentence “whenever a mistake is discovered,” 6/15/2007 PRP at 2; and (2) “`[w]hen a sentence has been imposed for which there is no authority in law, the trial court has the power and duty to correct the erroneous sentence, when the error is discovered.'” 6/15/2007 PRP at 2 (quoting McNutt v. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848 (1955) cert. denied, 350 U.S. 1002 (1956)). But the issue in Drum’s June 2007 PRP is not whether his sentence is erroneous; it is whether he was denied his opportunity to request “specific performance” of his plea agreement. Accordingly, Drum fails to demonstrate that his June 2007 PRP is not time barred on this basis.
To the extent that we might also construe Drum’s arguments as asserting the amended judgment and sentence is facially invalid, when considered with his plea agreement and related documents, Drum fails to demonstrate that his June 2007 PRP is not time barred on this basis. As we state above, the issues Drum raises in his June 2007 PRP concern whether he was wrongfully denied his right to request “specific performance” of the plea agreement, a matter that clearly lies beyond the face of his amended judgment and sentence.
Drum fails to show that his May 2005 amended judgment and sentence is facially invalid, that the sentencing court lacked competent jurisdiction, or that any of the six time-bar exceptions enumerated in RCW 10.73.100 apply. Therefore, we deny his June 2007 PRP as untimely See RAP 16.11(b).
Accordingly, we affirm the trial court’s dismissal of Drum’s CrR 7.8 motion and deny his personal restraint petitions.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and QUINN-BRINTNALL, J., concur.
Drum also appealed a 2004 Jefferson County residential burglary conviction and filed additional PRPs related to that conviction (see
cause nos. 35947-2-II, 34377-1-II, 33559-0-II). Drum’s appeal and PRPs related to his Jefferson County conviction are similarly not relevant to this appeal or its consolidated PRPs.
The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:
(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant’s conduct;
(3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution;
(4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction;
(5) The sentence imposed was in excess of the court’s jurisdiction; or
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
Laws of 2006, ch. 339 § 302, ch. 73 § 10, it did not alter this specific language.
No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
Page 1