In re Cadwallader

• Decision Date: 23 November 2005
• Docket Number: No. 76070-5.,76070-5.
• Citation: 155 Wn.2d 867,123 P.3d 456
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Richard CADWALLADER, Petitioner. State of Washington, Respondent, v. Richard Allen Cadwallader, Petitioner.

Page 456

123 P.3d 456

155 Wn.2d 867

In the Matter of the Personal Restraint of Richard CADWALLADER, Petitioner State of Washington, Respondent, v. Richard Allen Cadwallader, Petitioner.

No. 76070-5.

Supreme Court of Washington, En Banc.

Argued September 13, 2005.

Decided November 23, 2005.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, for Petitioner/Appellant.

David Stuart Mc Eachran, Kimberly Anne Thulin, Whatcom County Prosecutor's Office, Bellingham, for Appellee/Respondent.

MADSEN, J.

¶ 1 The petitioner was sentenced as a persistent offender to life in prison without the possibility of early release. He argues that his sentence is unlawful because one of the two predicate strike offenses "washed out" and that the Court of Appeals erroneously allowed the State to prove an out-of-state conviction to show that the wash out period was interrupted. Because it is the State's burden to establish criminal history at sentencing (unless the defendant pleads guilty pursuant to a plea agreement), we agree that the State is not entitled to rely on the out-of-state conviction that it did not allege at sentencing. We reverse the Court of Appeals and remand this case for resentencing.

FACTS

¶ 2 In 1998 Richard Cadwallader pleaded guilty to second degree robbery committed in 1997.¹ His plea of guilty was not, however, pursuant to a plea agreement. Cadwallader was sentenced under the Persistent Offender Accountability Act (POAA) to life without the possibility of early release. Under the POAA a "persistent offender" is, in relevant part, an individual who is convicted of a felony that is a most serious offense and who has at least two prior felony convictions for most serious offenses. RCW 9.94A.030(33); .570. The State presented Cadwallader's criminal history, which is shown in his statement on plea of guilty and in his judgment and sentence: an August 1974 conviction for second degree burglary; a January 1978 conviction for third degree rape; an April 1981 conviction for second degree escape; an April 1993 conviction for second degree robbery; and an April 1993 conviction for taking a motor vehicle. The State identified the 1978 rape and the 1993 robbery as predicate strike offenses under the POAA.

¶ 3 Cadwallader's statement on plea of guilty states that he agreed that the prosecuting attorney's statement of his criminal history was correct and complete. At sentencing he did not object to the prosecuting attorney's presentation of his criminal history or characterization of the 1978 rape conviction as a predicate strike offense. It is undisputed that he thought that the sentence would be life without possibility of early release. The trial court accepted Cadwallader's plea and sentenced him as a persistent offender to life. In March 1999 Cadwallader filed a personal restraint petition challenging the validity of his guilty plea. The Court of Appeals dismissed the petition.

¶ 4 On October 7, 1999, this court issued State v. Cruz, 139 Wash.2d 186, 985 P.2d 384 (1999), holding that a 1990 amendment to the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, that removed prior sex offenses from wash out provisions of the SRA applied prospectively only and that a rape conviction that had previously washed out was not revived by the amendment. On April 12, 2000, Cadwallader, acting pro se, filed the present personal restraint petition, arguing that the 1978 rape conviction washed out because he had no convictions during the five years following his January 31, 1983, release from confinement for that offense. He argued his life sentence was invalid. Cadwallader sought resentencing under the SRA. The State moved for additional time to respond to Cadwallader's petition, arguing that it needed to verify two felony convictions in Kansas about which it had recently learned. The Court of Appeals granted the motion. In its initial response, the State argued that one of the Kansas convictions, a 1985 theft conviction, interrupted the five-year period, and accordingly the 1978 conviction did not wash out. The Court of Appeals appointed counsel for Cadwallader, and the parties filed supplemental briefing.

¶ 5 Then, on March 4, 2000, the State filed a motion under CrR 7.8(b)(3) in Whatcom County Superior Court seeking to vacate or amend the judgment and sentence. The next day, the State sought a stay of the personal restraint petition proceedings in the Court of Appeals pending the trial court's consideration of the CrR 7.8 motion. The Court of Appeals granted the stay.

¶ 6 The State's motion in superior court for vacation or amendment of the judgment and sentence was based on its assertion that Cadwallader committed fraud and misrepresentation relating to his criminal history presented at the time of his plea and sentencing. The State's theory was that Cadwallader defrauded the court by remaining silent. The prosecuting attorney initially represented that the State believed it had set out Cadwallader's full criminal history and that it discovered the 1985 Kansas felony conviction in the course of responding to the personal restraint petition. However, in discovery provided to the defense prior to the 1998 sentencing, the State had provided a printout of a Washington State Identification Section (WASIS) and a National Crime Information Center (NCIC) criminal history that showed the Kansas theft conviction.²

¶ 7 Although it refused to find that the State established fraud, the trial court made findings and conclusions that Cadwallader had a 1985 felony theft conviction from Kansas that was comparable to the crime of theft in the second degree in Washington, a class C felony.

¶ 8 Cadwallader appealed. The State then moved in the Court of Appeals pursuant to RAP 7.2(e) for entry of the trial court's findings and conclusions. The Court of Appeals granted the motion, lifted the stay, and consolidated the personal restraint petition and the appeal.

¶ 9 The Court of Appeals concluded that because Cadwallader failed to object to his criminal history and put the sentencing court on notice that the 1978 conviction washed out, and the parties thus had not litigated the washout issue before sentencing, the State should have the opportunity to prove the 1985 Kansas conviction to show that the 1978 rape conviction did not wash out. In re Pers. Restraint of Cadwallader, noted at 122 Wash.App. 1023, slip op. at 17, 2004 WL 1559782 at *1 (2004), review granted, 154 Wash.2d 1001, 113 P.3d 481 (2005). The Court of Appeals observed that the State did not list the 1985 conviction because it did not appear necessary. Id., slip op. at 17, 2004 WL 1559782 at *1. The Court of Appeals also recognized, though, that there was no reason for Cadwallader to object to characterization of the rape offense as a predicate strike offense in light of the 1990 amendment to the SRA eliminating sex offenses from the wash out provisions. Id. That is, both parties believed at the time of sentencing that the 1978 rape conviction could not wash out.

¶ 10 The Court of Appeals accepted the trial court's findings that the conviction was valid and comparable and then dismissed Cadwallader's personal restraint petition because, in light of the Kansas conviction, the 1978 rape conviction did not wash out. The court remanded for amendment of the judgment to reflect the Kansas conviction.

ANALYSIS

¶ 11 A petitioner cannot obtain collateral relief based on nonconstitutional error unless the petitioner shows that he or she is unlawfully restrained due to a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of West, 154 Wash.2d 204, 209, 110 P.3d 1122 (2005); In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 867, 50 P.3d 618 (2002); In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990).

¶ 12 The first question is whether Cadwallader affirmatively acknowledged his criminal history, including the 1978 rape conviction, and agreed to his life sentence as a persistent offender. The State argues that Cadwallader's affirmative acknowledgement supplied the necessary facts for the trial court to impose the persistent offender sentence without further evidence from the State.

¶ 13 A sentencing court may rely on a stipulation or acknowledgment of prior convictions without further proof. See RCW 9.94A.530(2). Acknowledgement includes not objecting to information included in presentence reports. Id. If the defendant disputes material facts, the sentencing court either must not consider the facts, or it must grant an evidentiary hearing on the matter. RCW 9.94A.530(2) (formerly RCW 9.94A.370(2)).

¶ 14 However, as Cruz and Goodwin demonstrate, Cadwallader could not agree to a life sentence as a persistent offender under the circumstances in this case. Like in Cruz, Cadwallader's judgment and sentence includes a predicate strike offense that washed out prior to the 1990 amendment to the SRA that eliminated sex offenses from the wash out provisions. When Cruz was decided it became clear that the 1990 amendment applied prospectively only and did not apply to revive washed out convictions. We held in Cruz that the defendant had to be resentenced using an offender score that did not include the washed out conviction.

¶ 15 In Goodwin the petitioner's statement on plea of guilty pursuant to a plea agreement stated that the petitioner agreed that the prosecuting attorney's statement of his criminal history was correct and complete. Goodwin, 146 Wash.2d at 864, 50 P.3d 618. However, petitioner's judgment and sentence showed that one of the prior convictions used to calculate his offender score had washed out. We explained that a sentence based on a miscalculated upward offender score is in excess of statutory authority and generally may be challenged at any time. Id. at 873-74, 50 P.3d 618. The defendant cannot agree to a sentence in excess of that which is statutorily authorized. Id. at 876, 50 P.3d 618. We remanded for...