In re Call

Decision Date26 July 2001
Docket NumberNo. 69876-7.,69876-7.
Citation144 Wash.2d 315,28 P.3d 709
PartiesIn the Matter of the Personal Restraint Petition of Ira Erwin CALL, Respondent.
CourtWashington Supreme Court

Steven Tucker, Spokane County Prosecutor, Kevin Michael Korsmo, Deputy, Spokane, for Petitioner.

Sheryl Gordon McCloud, Seattle, for Respondent.

SMITH, J.

Petitioner State of Washington seeks review of a decision by the Court of Appeals, Division Three, which granted the personal restraint petition of Respondent Ira Erwin Call, remanding to the Spokane County Superior Court for resentencing on his conviction for robbery in the first degree because of the inadvertent inclusion of two prior convictions in Texas which had "washed out" with the result that the trial court used an offender score of 10 instead of 8 and sentenced him to 129 months instead of 108 months, the lower end of the standard range. We granted review. We affirm.

QUESTION PRESENTED

The question presented in this case is whether the invited error doctrine precludes a defendant from arguing in a personal restraint petition that his offender score is lower than the Prosecuting Attorney and the defendant jointly represented to the trial court at sentencing even though the sentence actually imposed was within the standard range, but not at the low end of the standard range, for the correct offender score.

STATEMENT OF FACTS

On April 22, 1999, the Spokane County Prosecuting Attorney filed a second amended information in the Spokane County Superior Court charging Respondent Ira Erwin Call with robbery in the first degree.1 The information read:

That the defendant, IRA ERWIN CALL, in the State of Washington, on or about December 9, 1998, with the intent to commit theft, did unlaw-fully [sic] take and retain personal property, an automobile, a purse and its contents, from the person and in the presence of Lila K. Milliron, against such person's will, by use or threatened use of immediate force, violence and fear of injury to Lila K. Milliron, and in the commission of and immediate flight therefrom, the defendant was armed with a deadly weapon, to wit: a knife[.]

That same day, the trial court, the Honorable Linda G. Tompkins, accepted Respondent's plea of "guilty" to the one count of first degree robbery.2 Judge Tompkins also accepted his plea of "guilty" to two additional offenses: second degree robbery and first degree theft.3 The parties agreed that Respondent would plead guilty to all three offenses and that the Prosecuting Attorney would dismiss a deadly weapon enhancement charge and four counts of forgery in conjunction with the first degree robbery charge, and dismiss one count of possession of stolen property in the first degree.4

The Prosecuting Attorney and Respondent both agreed that Respondent's offender score for purposes of sentencing was "9 plus, essentially a 10" on the two robbery convictions and 9 on the theft conviction.5 The calculation of his offender score of 10 included seven prior offenses,6 two of which were committed in Texas,7 and the two other additional offenses charged against him in this case.

The Prosecuting Attorney agreed to recommend a sentence at the low end of the standard range8 based upon an offender score of 10, which the parties agreed was 129 to 171 months on the first degree robbery conviction.9 The Prosecuting Attorney and Respondent jointly recommended that the court sentence Respondent to 129 months on the first degree robbery conviction.10 The court sentenced him to 129 months on that charge.11 The court also ordered the sentences on the two other offenses to be served concurrently with the first degree robbery conviction.12 Respondent did not appeal.

On June 22, 1999, Respondent Call filed a personal restraint petition in the Court of Appeals, Division Three, contending the trial court based his sentence for first degree robbery on an incorrect offender score.13 He argued that his two prior Texas convictions should not have been used in calculating his offender score for the first degree robbery conviction because they "washed out" under former RCW 9.94A.360(2) (1999) of the Sentencing Reform Act (SRA) of 1981. He claimed his Texas convictions were equivalent to Class C felonies and he was free in the community for more than five years before his next offense—a 1996 forgery conviction.14 The State responded that any error was invited because of the plea agreement between Respondent and the State and their joint agreement to recommend a sentence of 129 months; and even if the Texas convictions were not counted, Respondent's offender score would be 8 and his sentence of 129 months would still be within the standard range of 108 to 144 months.

The Court of Appeals contacted the Texas Department of Criminal Justice which confirmed that Respondent was released from confinement on the two 1987 Texas convictions more than five years before his next offense.15

After informing the State of this information and inviting a response,16 the Court of Appeals granted Respondent's personal restraint petition on March 30, 2000 and remanded the case for resentencing using an offender score of 8 instead of a score of 10 in calculating his sentence for first degree robbery.17 The Court of Appeals, in an unpublished per curiam opinion, stated that:

The invited error doctrine cannot cure the court's lack of statutory authority for a sentence imposed using an incorrect offender score. Further, it is impossible to say with certainty that the superior court here would have imposed the same sentence if it had used the proper offender score. As set forth above, Mr. Call's statement on plea of guilty indicates the State would recommend a "low end" standard range sentence. "Low end", counting the Texas convictions, is the 129 months that the sentencing court imposed. "Low end", without those convictions, is 108 months. If the court would have sentenced Mr. Call to 108 months, had it used a proper offender score, then he has suffered prejudice by the court, instead, using the improper offender score.[18]

On April 17, 2000, the State filed a motion for reconsideration, arguing that any alleged error was invited and that the Court of Appeals had erroneously applied direct appeal standards in a personal restraint petition, having equated an alleged sentencing error with lack of authority to impose a sentence.19 The Court of Appeals denied the motion on May 18, 2000.20

Petitioner State then sought review by this court, which was granted on December 6, 2000.21

DISCUSSION

Petitioner State of Washington contends the Court of Appeals erred in granting Respondent Ira Erwin Call's personal restraint petition and directing the trial court to resentence him with an offender score of 8 instead of a score of 10 for his first degree robbery conviction.22 Respondent Call argues that the Court of Appeals properly determined his sentence for first degree robbery was calculated upon an erroneous offender score.23 He agrees with the Court of Appeals that because his two prior Texas convictions should have "washed out" under former RCW 9.94A.360(2), the incorrect offender score of 10 increased his correct sentence range from 108 to 144 months to the incorrect sentence range of 129 to 171 months, which resulted in a low-end sentence of 129 months instead of a low-end sentence of 108 months, thus incorrectly adding 21 months to his sentence.24 Petitioner does not concede that Respondent's two prior Texas convictions "wash out" under the SRA.25 Petitioner argues instead that the invited error doctrine precludes a challenge to an agreed offender score and sentence recommendation26 and that Respondent has not met his burden in this personal restraint proceeding of establishing an unconstitutional error amounting to a miscarriage of justice.27

Petitioner contends that Respondent cannot challenge his offender score of 10 because his statement on the plea of guilty form prepared by his lawyer represented to the court that his "standard range on the first degree robbery charge was 129 to 171 months based on the prosecutor's understanding of [his] criminal history and that the statement of criminal history was correct"; both the prosecutor and the defense asked the court to impose a 129-month sentence; and the plea agreement dismissed five felony counts and a weapons enhancement count.28 Respondent claims he was misled and was not made fully aware of the "potential ... defect" by the plea documents, and that both the court and the State provided him with an inaccurate standard sentence range.29 He asserts the plea agreement required the State to recommend a "low-end range" sentence, and the correct low end is 108 months and not 129 months.30

Petitioner argues the facts of this case are similar to other cases in which courts have declined challenges to plea agreements based upon invited error, waiver, or benefit of the bargain.31 Respondent counters that the cases cited by the State are distinguishable, and instead offers other cases he considers analogous.32

A similar argument advanced by Petitioner in this case was rejected by this court in In re Personal Restraint of Thompson.33 In that case, the State argued that "where a defendant has bargained for and received a benefit in exchange for his plea, he must adhere to his bargain."34 In addressing the issue in Thompson,35 this court distinguished State v. Majors,36 a case relied upon by Petitioner, and In re Personal Restraint of Barr.37

In Majors, the defendant stipulated to two prior convictions for the purpose of being declared a habitual offender in exchange for a reduced charge of second degree murder, even though one of the two prior convictions was for a crime committed after the underlying offense for which he was sentenced as a habitual offender.38 On appeal, the defendant claimed the supplemental information was defective and void on its face because one of his prior felony...

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