301 P.3d 450 (Wash. 2013), 86018-1, In re Finstad

Docket Nº:86018-1.
Citation:301 P.3d 450, 177 Wn.2d 501
Opinion Judge:GONZ
Party Name:In the Matter of the Personal Restraint of Lowell Deray FINSTAD, Petitioner.
Attorney:Eric J. Nielsen, David Bruce Koch, Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner. Abigail E. Bartlett, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.
Judge Panel:WE CONCUR: MADSEN, C.J., OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS, JJ. WIGGINS, J. (dissenting).
Case Date:May 23, 2013
Court:Supreme Court of Washington
 
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Page 450

301 P.3d 450 (Wash. 2013)

177 Wn.2d 501

In the Matter of the Personal Restraint of Lowell Deray FINSTAD, Petitioner.

No. 86018-1.

Supreme Court of Washington, En Banc.

May 23, 2013

Argued Sept. 25, 2013.

Page 451

Eric J. Nielsen, David Bruce Koch, Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Abigail E. Bartlett, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.

GONZÁLEZ, J.

[177 Wn.2d 503] ¶ 1 This case squarely asks whether petitioners collaterally challenging judgments and sentences based on a failure to follow statutory sentencing procedures must show that they were prejudiced by the claimed error. In 2007, Lowell Deray Finstad faced at least seven felony charges. After he was convicted by a jury on two of the charges, he and the State negotiated a global plea agreement on the remaining charges. The agreement likely resulted in less prison time for Finstad, and in exchange, Finstad agreed to dismiss his appeal of his jury convictions. Under the agreement, most of the sentences would run concurrently. However, the State indicated it would ask the judge to run a sentence for delivery of a controlled substance conviction consecutive to the others. It appears that neither the State nor Finstad nor the court realized that this consecutive sentence would constitute an exceptional sentence and require special findings. The judge accepted the pleas and largely accepted the State's sentencing recommendation without making any special findings.

¶ 2 Finstad did not appeal. Three years later, Finstad filed this personal restraint petition, contending he received an exceptional sentence that did not comply with the requirements of RCW 9.94A.589 and RCW 9.94A.537. He asked this court to order the sentences be served concurrently. [177 Wn.2d 504] Reply Br. at 9. The State concedes that running the sentences consecutively resulted in an exceptional sentence, and, since the trial judge did not make the requisite findings, that the judgments and sentences are not valid on their faces. However, it contends that under the facts of this case, Finstad is not entitled to relief because he has not met his burden of showing he was prejudiced by the particular flaw. We agree and dismiss.

FACTS

¶ 3 In February 2007, a jury found Finstad guilty of one count of possession of a controlled substance with intent to deliver (cocaine) and one count of possession of a controlled substance (methamphetamine). Answer to Mot. for Discr. Review, App. F. The next month, Judge Wulle sentenced Finstad to 40 months confinement. Id. App. F at 6. Meanwhile, Finstad was facing two charges of possession of controlled substances (cocaine and methamphetamine) with intent to deliver stemming from a June 2006 event; 1 a charge of delivery of a controlled substance stemming from an October 2006 event; 2 a charge of intimidating a witness stemming from a 2005 event; 3 and a charge of attempted arson committed sometime in 2006. 4 Id. App. A at 12-13; Apps. H-J. The attempted arson charge carried a potential law enforcement victim aggravator. Id. App. A at 12. The possession charges carried potential firearms and school zone enhancements. Suppl. Br. of Resp't, App. A.

¶ 4 The State proposed a plea agreement under which Finstad would plead guilty to the pending charges and dismiss his appeal of his February convictions. In return, the State would not seek any sentencing enhancements. Answer [177 Wn.2d 505] to Mot. for Discr. Review, App. A at 12-13. On its formal offer, the State spelled out its sentencing recommendation:

120 Months in Total Confinement. This 120 months would include the 40 months on 06-1-01073-6, which was sentenced previously this year, 40 months on 06-1-

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01137-6, 40 months on 06-1-02072-3, each consecutive to each other. Additionally, the defendant would be sentenced to 40 months on 07-1-00611-7 (Witness [I]ntimidation), concurrent to all other causes, along with 40 Months on 07-1-01996-1 (Attempted Arson I), concurrent to all other causes.

Id. at 13.

¶ 5 On November 14, 2007, Finstad pleaded guilty to the remaining charges under four separate cause numbers. Id. Apps. A-D. Judge Wulle accepted Finstad's guilty pleas and largely accepted the State's sentencing recommendation, though he sentenced Finstad to only 36 months on the attempted arson charge. Id. Apps. D, F-I, K. While each individual sentence was within the standard range, Judge Wulle sentenced Finstad to consecutive sentences on the charges of possession with intent to deliver and the charge of delivery of a controlled substance. Id. In none of the four separate judgments and sentences issued that day did Judge Wulle make a specific finding that an exceptional sentence was appropriate under RCW 9.94A.589. Id.

¶ 6 Three years later, Finstad filed this personal restraint petition, contending the judgments and sentences were invalid on their faces because they did not show that the trial judge made the findings required by RCW 9.94A.589 before running sentences consecutively and because the State had not filed a notice of an intent to seek an exceptional sentence as required by RCW 9.94A.537(1).5 He did not move to withdraw his guilty plea, which would have [177 Wn.2d 506] been untimely and could have put him at risk of the State seeking the sentencing enhancements it had abandoned. The Court of Appeals effectively treated his petitions as a motion to withdraw his plea on only some of the charges in a " ‘ package deal’ " and dismissed. Order Dismissing Pet. at 2 (No. 41877-1-II) (citing State v. Ermels, 156 Wash.2d 528, 540-41, 131 P.3d 299 (2006)). We granted review.

ANALYSIS

¶ 7 Initially, we note the State concedes that the judgments and sentences at issue are not valid on their faces because they do not show that the trial court complied with RCW 9.94A.589 before sentencing Finstad to consecutive sentences. It also concedes that Finstad has overcome the time bar set forth in RCW 10.73.090 (" 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." ). As the parties are not meaningfully adverse on these questions, we accept the State's concessions.

¶ 8 However, while Finstad has overcome the time bar on review, more is required before a court will order relief from a settled judgment. " Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner must meet a high standard before this court will disturb an otherwise settled judgment." In re Pers. Restraint of Coats, 173 Wash.2d 123, 132-33, 267 P.3d 324 (2011) (citing In re Pers. Restraint of Cook, 114 Wash.2d 802, 810-12, 792 P.2d 506 (1990)). Typically, this means a petitioner must show either that he or she was actually and substantially prejudiced by constitutional error or that his or her trial suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Elmore, 162 Wash.2d 236, 251, 172 P.3d 335 (2007); Cook, 114 Wash.2d at 810-12, 792 P.2d 506.

[177 Wn.2d 507] ¶ 9 Finstad does not specifically attempt to meet this standard. Instead, he contends that because the judgments and sentences lack the finding required by RCW 9.94A.535, they were entered without authority of law, and thus, he contends, he is entitled to relief. As the State concedes, the sentencing process did not comply with the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. RCW 9.94A.589(1)(a) provides:

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Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score.... Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.

Under RCW 9.94A.535:

The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.[6]

Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.

¶ 10 While the SRA does not formally define " current offense," the term is defined functionally as convictions entered or sentenced on the same day. RCW 9.94A.525(1) [177 Wn.2d 508] (" Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed ‘ other current offenses.’ " ) Generally, sentences on current offenses are presumed to be served concurrently, rather than consecutively. RCW 9.94A.589(1)(a). In contrast, nothing in the SRA suggests that sentences issued on different days would not be presumptively served consecutively.

¶ 11 In Coats, we recognized that our case law had not been entirely consistent on whether mere invalidity, standing alone, was sufficient to justify relief. Coats, 173 Wash.2d at 142-43, 267 P.3d 324 (citing cases). Coats did not give us an opportunity to decide the issue. But this case does. As the chief justice observed in Coats, RCW 10.73.090 presents " a procedural bar, not a substantive bar." Id. at 145, 267 P.3d 324 (Madsen, C.J., concurring)...

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