STATE v. ROBTOY, 28338-7-II (Wash.App. 12-9-2003)

No. 28338-7-IIThe Court of Appeals of Washington, Division Two.
Filed: December 9, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Kitsap County. Docket No: 79-1-00050-5. Judgment or order under review. Date filed: 01/04/2002.

Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, 623 Dwight St, Port Orchard, WA 98366-4619.

Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.

SEINFELD, J.

In 1979, the Kitsap County Superior Court sentenced Michael Robtoy to death for killing David King. In 1981, the Washington Supreme Court ruled that the death penalty was unconstitutional and it vacated Robtoy’s death sentence. He was then sentenced to life without parole in 1989, but the Ninth Circuit Court of Appeals ordered that Robtoy’s sentence be amended to include the possibility of parole.

In 1991, the Kitsap County Superior Court responded to the Ninth Circuit’s order by conducting a resentencing hearing following which it (1) ordered that Robtoy’s sentence run consecutively to a separate sentence for another murder conviction in Pierce County; and (2) recommended a minimum term of 600 months. In 1993, at the request of the Indeterminate Sentence Review Board (Board), the Kitsap County Superior Court conducted another sentencing hearing following which it entered an order setting a 600 month minimum term.

In 2001, Robtoy filed a CrR 7.8 motion challenging the 1991 and 1993 rulings; the Kitsap County Superior Court rejected the motion as untimely. Robtoy appeals that ruling, arguing that (1) the trial court erred when it rejected his CrR 7.8 motion as untimely; (2) the trial court improperly modified his sentence in 1991 and 1993 by imposing consecutive sentences; and (3) this modification violates double jeopardy protections. We affirm.

FACTS
Robtoy murdered David King in Kitsap County in 1978. The murder occurred when Robtoy was on a furlough from a corrections facility for a statutory rape sentence.

A few months after King’s murder, the police arrested Robtoy. During police questioning, Robtoy confessed to the murder of Ruth Pitts in Pierce County. He committed the Pitts murder after the State charged him, but before his confinement on the statutory rape conviction. Robtoy pleaded not guilty to murdering King.

Following a jury trial in Kitsap County Superior Court for King’s homicide, the jury entered a verdict in favor of the death penalty and the trial court sentenced him accordingly. The next day, Robtoy pleaded guilty in Pierce County Superior Court to Pitts’ murder. In exchange for his plea, the State agreed to recommend a sentence of life imprisonment and the Pierce County Superior Court sentenced him to life imprisonment for Pitts’ murder.

In 1981, the Washington Supreme Court vacated Robtoy’s death sentence,[1] and in 1989, the Ninth Circuit Court of Appeals granted Robtoy’s writ of habeas corpus, holding that his sentence to life without parole was unconstitutional.[2] The Ninth Circuit ordered resentencing.

In 1991, the Kitsap County Superior Court held a resentencing hearing. After considering the impact of the adoption of the Sentencing Reform Act of 1981 (SRA) on a pre-SRA conviction, the court entered a judgment and sentence of life imprisonment with the possibility of parole. It also recommended a 600-month minimum term and supported this recommendation with findings of fact and conclusions of law. The court further stated, `That [Robtoy’s] sentence should be served consecutively to any time fixed for service pursuant to the conviction for Murder in the Second Degree in Pierce County.’ Clerk’s Papers (CP) at 69. The sentencing court apparently understood that the Indeterminate Sentence Review Board (Board) had the responsibility to set Robtoy’s minimum term and would adopt the court’s recommendation.[3]

In November 1992, the Attorney General advised the trial court on behalf of the Board that it would treat the court’s 1991 minimum term as a recommendation only. In response to this letter, the trial court held another resentencing hearing on March 17, 1993, and ordered a minimum term identical to its 1991 recommendation.[4]

In 2001, Robtoy filed a CrR 7.8 motion in Kitsap County Superior Court challenging the 1991 and 1993 sentences. The trial court rejected his motion as untimely. On appeal, Robtoy contends that the trial court erred in finding his CrR 7.8 motion to be untimely. He also argues the trial court’s provision requiring consecutive sentences was improper and violates double jeopardy protections.

ANALYSIS I. CrR 7.8 Motion
Robtoy argues that the trial court abused its discretion by rejecting his CrR 7.8 motion as untimely. He contends that because his motion focused on jurisdiction and double jeopardy issues, he was exempt from the one year filing deadline for collateral attacks.

The broad definition of a collateral attack includes personal restraint petitions (PRPs) and CrR 7.8 motions; a petitioner must file a PRP or a CrR 7.8 motion within one year of a final judgment. RCW 10.73.090; State v. Olivera-Avila, 89 Wn. App. 313, 317, 949 P.2d 824 (1997). But there are exceptions for a collateral attack that focuses on double jeopardy or jurisdictional violations. RCW 10.73.100(3),(5). We review a trial court’s ruling on a CrR 7.8 motion under an abuse of discretion standard. Olivera-Avila, 89 Wn. App. at 317.

In his CrR 7.8 motion, Robtoy argued that his revised sentence was the equivalent of an exceptional sentence under the Sentencing Reform Act (SRA).[5] But this challenge does not satisfy the definition of a jurisdictional defect under RCW 10.73.100(5) because the court `does not lose subject matter jurisdiction merely by interpreting the law erroneously.’ State v. Moen, 129 Wn.2d 535, 545, 919 P.2d 69 (1996) (citations omitted). Thus, RCW 10.73.100(5) does not apply because the Kitsap County Superior Court had both personal and subject matter jurisdiction over Robtoy’s sentence.[6] And Robtoy’s CrR 7.8 motion does not address double jeopardy violations.

Consequently, Robtoy’s CrR 7.8 motion was untimely under RCW 10.73.090
because Robtoy filed it many years after the challenged sentences and the exceptions in RCW 10.73.100(3),(5) do not apply. The trial court did not abuse its discretion in rejecting the motion and the motion for reconsideration.

II. Authority to Order Consecutive Sentences
Robtoy’s appellate counsel raises a double jeopardy challenge on appeal and argues that because Robtoy filed his CrR 7.8 motion pro se, because he was not present for the hearing on the matter or for entry of the order, and because the trial court denied the motion for reconsideration filed following the appointment of counsel, we should address the merits of the appeal. We do not agree that Robtoy is entitled to review but in light of the extensive litigation in this matter, and in order to resolve certain issues and avoid further litigation, we address his substantive issues on appeal.

A. The Trial Court’s Authority at the 1993 Resentencing Hearing
Robtoy contends that the Board, not the trial court, had the authority to set his minimum term for pre-SRA convictions and that the trial court erred in 1993 when it `went from recommending to imposing a minimum term.’ Br. of Appellant at 13. Robtoy also asserts that the trial court’s 1993 resentence was time barred.

RCW 9.95.011(1) governs the trial court’s authority to set a defendant’s minimum term for a pre-SRA conviction. It states:

(1) When the court commits a convicted person to the department of corrections on or after July 1, 1986, for an offense committed before July 1, 1984, the court shall, at the time of sentencing or revocation of probation, fix the minimum term. The term so fixed shall not exceed the maximum sentence provided by law for the offense of which the person is convicted.
. . . .
. . . Nothing in this section affects the board’s authority to reduce or increase the minimum term, once set by the court. . . .

(emphasis added).

Here, Robtoy’s contention is unpersuasive. The plain language in RCW 9.95.011(1) gives the trial court authority to set a defendant’s minimum term. See also State v. Whitaker, 112 Wn.2d 341, 343, 771 P.2d 332 (1989) (RCW 9.95.011 `directs the court to incorporate the SRA and to set minimum terms for offenses committed before July 1, 1984′). The Attorney General’s letter to the Kitsap County Superior Court was consistent with this statutory authority. It stated that `[d]espite your recommendation [1991 resentencing], the Indeterminate Sentence Review Board lacks the authority to set Mr. Robtoy’s minimum term. Thus, [the Board] respectfully requests this court set Mr. Robtoy’s minimum term on this cause.’ CP at 112. In response, the trial court set Robtoy’s minimum term. Thus, the court’s 1993 order is proper and consistent with RCW 9.95.011(1).

Robtoy contends that RCW 9.95.011(1) is inconsistent with RCW 9.95.116(1), which states `[t]he board shall fix the duration of confinement for persons committed to the custody of the department of corrections under a mandatory life sentence for a crime or crimes committed before July 1, 1984.’ Robtoy argues that he was committed to the department of corrections in 1979 and, thus, RCW 9.95.011(1) does not apply.

But RCW 9.95.011(1) clearly amended RCW 9.95.116(1) under certain circumstances which are applicable here. The warrant of commitment incorporated Robtoy’s judgment and sentence. Following his successful appeal that led to the vacation of his 1979 sentence, the trial court issued a new warrant of commitment to reflect the new judgment and sentence. The court issued Robtoy’s most recent warrant of commitment following his resentencing in 1991. Because the trial court entered its new judgment and related new warrant of commitment after July 1, 1984, RCW 9.95.011 controls and required the court, not the Board, to set his minimum term.

Robtoy’s assertion that the trial court’s 1993 order fixing the minimum term was time barred ignores the trial court’s authority to cure its defective 1991 sentence. State v. Broadaway, 133 Wn.2d 118, 136, 942 P.2d 363 (1997). The Attorney General put the court on notice of the defect in November 1992, and the court conducted a resentencing hearing about four months later in March 1993. This response time was not unreasonable, especially considering the lack of clarity in 1991 as to the trial court’s role in fixing a defendant’s minimum term for certain pre-SRA convictions.[7]

Thus, the trial court properly exercised its authority under RCW 9.95.011(1) in 1993, when it set Robtoy’s minimum term and cured its defective 1991 minimum term recommendation.

B. Consecutive Sentence Provision
Robtoy argues that the resentencing court erred when it ordered that his convictions run consecutively.

RCW 9.92.080(3) governs how courts consider multiple convictions at a defendant’s sentencing hearing for felonies committed before July 1, 1984. Laws of 1971, ch. 295, sec. 1; Laws of 1981, ch. 136, sec. 35; RCW 9.92.900. RCW 9.92.080(3) states: `In all other cases, whenever a person is convicted of two or more offenses arising from separate and distinct acts . . . the sentences imposed therefor shall run consecutively, unless the court . . . expressly orders concurrent service thereof.’

We apply a manifest abuse of discretion standard when reviewing a trial court’s resentencing decision concerning a pre-SRA conviction. State v. Blight, 89 Wn.2d 38, 40, 569 P.2d 1129 (1977). Here, Robtoy concedes that the State `is correct that the facts of this case do not warrant a presumption that the Kitsap and Pierce County cases run concurrent.’ Reply Br. of Appellant at 3-4. Indeed, RCW 9.92.080(3) applies to Robtoy because he committed his crimes before July 1, 1984, and they involved two different victims and were committed ten months apart and in two separate counties. Additionally, there is no showing that the Pierce County Superior Court ordered a concurrent sentence for the Pierce County conviction.

Thus, the trial court did not err when it ordered Robtoy’s two sentences to run consecutively. Further, had it been silent, the result under the law would have been the same.

III. Double Jeopardy
Robtoy also raises a double jeopardy challenge to the Kitsap County Superior Court’s order that his sentences run consecutively. Double jeopardy occurs when a defendant receives multiple punishments for the same offense. State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080
(1996).

As discussed above, RCW 9.92.080(3) requires consecutive sentences for separate and distinct crimes run unless the sentencing court expressly orders concurrent sentences. The sentencing court here did not enter such an order.

Further, Robtoy’s current sentence is less severe than his earlier sentences. In 1979, he was sentenced to death. After his state and federal appeals, he was sentenced to life imprisonment with the possibility of parole consecutive to life imprisonment for the Pitts conviction. Nor is there any indication of a change to his sentence of life imprisonment for murdering Pitts.

We note that during his 1991 resentencing hearing, the Kitsap County Superior Court stated that the Board had said that it was `treating the convictions as if they’re going to be consecutive.’ 2/1/91 RP at 69. The record reflects no objection to this information.

Robtoy also contends that he had a legitimate expectation of finality in his 1991 sentence. In a resentencing context, we consider finality in light of relevant nonexclusive factors, such as the defendant’s completion of the sentence and the pendency of an appeal. Hardesty, 129 Wn.2d at 311. Here, Robtoy challenged the 1991 sentence and he had not substantially completed his life imprisonment sentence at the time of the 1993 resentencing hearing. He knew at the 1991 sentencing hearing that RCW 9.92.080(3) required that his two sentences for separate convictions run consecutively and he made no objection to the court’s ruling. Nothing had occurred to change this situation at the 1993 resentencing hearing. See State v. Traicoff, 93 Wn. App. 248, 253-54, 967 P.2d 1277 (1998) (defendant `charged with knowledge of a sentencing statute that mandated’ consecutive sentences; no legitimate expectation of finality because of `the mere passage of time between the original sentencing and a resentencing.’).

Thus, Robtoy has not demonstrated a double jeopardy violation.

IV. Robtoy’s Statement of Additional Grounds for Review
Robtoy submitted a `statement of additional grounds for review.’ RAP 10.10(a). He complains that when the trial court sentenced him in Kitsap County, it failed to consider his plea agreement regarding Pitts’ murder in Pierce County. His plea statement includes the prosecutor’s recommendation of a `life [sentence] to run concurrently with a prior conviction of Aggravated Murder in the First Degree [Kitsap County conviction].’ See Statement of Additional Grounds for Review (SAG).[8]

Because RCW 9.92.080(3) required consecutive sentences absent an express court order for concurrent sentences, and because Pierce County had not so ordered, Kitsap County Superior Court had the authority to enter an order requiring that its sentence run consecutive to Robtoy’s Pierce County conviction. Additionally, at the 1991 resentencing hearing, the parties understood and did not object to information about the Board’s intention to run the sentences consecutively.

Robtoy’s other additional grounds repeat facts and legal issues raised by his appellate counsel that we have discussed above.[9] Accordingly, we affirm the trial court’s rejection of Robtoy’s CrR 7.8 motion as untimely, uphold the 1991 sentence and the 1993 order fixing a minimum term and ordering the sentence to run consecutively to the Pierce County sentence, and hold that these orders do not violate double jeopardy protections.

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.

HOUGHTON, J. and HUNT, C.J., concur.