In re Carrier, 83377–0.

• Citation: 173 Wash.2d 791,272 P.3d 209
• Decision Date: 23 February 2012
• Docket Number: No. 83377–0.,83377–0.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the Personal Restraint Petition of Harry N. CARRIER, Petitioner.

173 Wash.2d 791

272 P.3d 209

In the Matter of the Personal Restraint Petition of Harry N. CARRIER, Petitioner.

No. 83377–0.

Supreme Court of Washington, En Banc.

Argued March 17, 2011.Decided Feb. 23, 2012.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Petitioner.

Mark Evans Lindquist, Kathleen Proctor, Melody M. Crick Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

STEPHENS, J.

[173 Wash.2d 795] ¶ 1 Harry Carrier filed this untimely personal restraint petition asserting that his mandatory life sentence under the “two strikes” provision of the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, is invalid. He contends that the trial court erroneously counted a dismissed conviction from 1981 as one of the strikes. The commissioner denied review because Carrier's judgment and sentence does not itself indicate that the 1981 conviction was dismissed. We granted Carrier's motion to modify and accepted review. We conclude that the dismissal order attached as an exhibit to Carrier's personal restraint petition may be considered in determining whether the judgment and sentence is valid on its face. In light of the dismissal order, we hold that Carrier's life sentence is invalid because a court may not include a dismissed conviction under former RCW 9.95.240 (1957) in a defendant's criminal history as a POAA strike offense.

FACTS AND PROCEDURAL HISTORY

¶ 2 In July 2004, the State charged Carrier with two counts of first degree child molestation (counts I and II),¹ sexual exploitation of a minor (count III), dealing in depictions of a minor engaged in sexually explicit conduct (count IV), and possession of depictions of a minor engaged in sexually explicit conduct (count V). The State filed a persistent offender notice, alleging that Carrier had a 1981 conviction for indecent liberties that qualified him for a life sentence as a “persistent offender” under the POAA if convicted on the current charges.

¶ 3 Carrier pleaded guilty to counts IV and V. The case proceeded to trial on the remaining counts. During a break at trial, Carrier agreed to plead guilty to count I in exchange for the State dismissing counts II and III. The plea agreement indicated that the State would seek a life sentence on count I based on Carrier's status as a “persistent offender.” The court accepted Carrier's guilty plea on count I but prior to sentencing Carrier moved to withdraw his plea. The court denied the motion. Carrier then attempted to persuade the court that the 1981 conviction for indecent liberties did not count as a strike offense under the POAA. The trial court disagreed and sentenced Carrier to life imprisonment without the possibility of parole on count I, 60 months on count IV, and 12 months on count V, all to run concurrently. The Court of Appeals affirmed on direct appeal, issuing its mandate in July 2007.

¶ 4 Carrier filed this personal restraint petition directly with this court in July 2009. In his petition, Carrier contends that his life sentence is invalid under the POAA. He argues that because his 1981 conviction for indecent liberties was dismissed, the trial court improperly counted the conviction in his criminal history as a strike. Carrier attached to his petition a court order from 1985 dismissing the indecent liberties conviction under former RCW 9.95.240.² In response, the State argues that Carrier's personal restraint petition is untimely, as he filed it more than one year after his judgment and sentence became final. Recognizing the court may consider an untimely personal restraint petition based upon a facially invalid judgment and sentence, the State asserts that Carrier's life sentence is valid because the trial court properly included the indecent liberties conviction in his criminal history.

¶ 5 The commissioner agreed with the State and dismissed the petition as untimely. Without reaching Carrier's substantive argument—that the trial court erred by including the dismissed conviction in his criminal history—the commissioner concluded that Carrier's judgment and sentence is valid on its face, subjecting his petition to the one-year time bar of RCW 10.73.090. The commissioner explained that the only evidence of invalidity on the judgment and sentence came from the 1985 dismissal order and considering the dismissal order would require improper elaboration beyond the “face” of the judgment and sentence.

¶ 6 Carrier moved to modify the commissioner's ruling, arguing that (1) the court should look to the dismissal order to determine whether the judgment and sentence is valid on its face and (2) the trial court erred by including the dismissed conviction in his criminal history as a POAA strike offense. We granted Carrier's motion, thereby accepting review.

ANALYSIS

¶ 7 Washington adopted the POAA, commonly known as the “three strikes law,” by initiative in 1993. State v. Thorne, 129 Wash.2d 736, 746, 921 P.2d 514 (1996). The POAA imposes a mandatory term of life imprisonment without the possibility of release for defendants who qualify as “persistent offenders.” RCW 9.94A.570. “Persistent offenders” are those who have been convicted of at least three “most serious offense[s].” Former RCW 9.94A.030(32)(a)(i)-(ii) (2004).³ In 1996, the legislature expanded the reach of the POAA by adding a “two strikes” provision. Laws of 1996, ch. 289, § 1. Under the “two strikes” option, a defendant qualifies as a “persistent offender” if convicted of at least two enumerated sex offenses. Former RCW 9.94A.030(32)(b)(i)-(ii) (2004).

¶ 8 The trial court sentenced Carrier to life imprisonment under the “two strikes” provision of the POAA. His 2004 conviction for first degree child molestation counted as one strike, and the court found that Carrier's 1981 conviction for indecent liberties was “comparable” ⁴ to first degree child molestation and counted as a second strike.

¶ 9 Carrier does not dispute the trial court's comparability finding. He agrees that indecent liberties can serve as a strike under the POAA. Instead, he argues that because his indecent liberties conviction was dismissed under former RCW 9.95.240, the trial court improperly counted the conviction in his criminal history as a strike for purposes of the POAA. See Thorne, 129 Wash.2d at 779, 921 P.2d 514 (explaining that the POAA “is essentially a sentence enhancement statute which is based on the past criminal history of a defendant”).

¶ 10 A judgment and sentence is invalid if it imposes a sentence in excess of the punishment authorized by law. In re Pers. Restraint of Cruze, 169 Wash.2d 422, 426–27, 237 P.3d 274 (2010); In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 866–67, 50 P.3d 618 (2002). If Carrier's judgment and sentence wrongly included his 1981 conviction for indecent liberties in his criminal history, then he would escape the reach of the POAA. His mandatory life sentence would exceed the punishment authorized by law, rendering his judgment and sentence invalid.

¶ 11 Because Carrier's personal restraint petition is untimely, we must first determine whether the judgment and sentence is valid on its face. If the judgment and sentence is invalid, then Carrier's personal restraint petition is not subject to the one-year time bar under RCW 10.73.090. The question breaks down into two parts. First, can we consider the order dismissing Carrier's indecent liberties conviction in deciding if an error exists on the “face” of the judgment and sentence? Second, is the sentence invalid because the trial court included Carrier's dismissed conviction in his criminal history as a strike under the POAA? If we answer both questions in the affirmative, we must then decide whether Carrier has shown the requisite prejudice to obtain relief on his personal restraint petition.

I. Consideration of the Dismissal Order in Examining the “Face” of the Judgment and Sentence

¶ 12 “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.” RCW 10.73.090(1). The parties do not dispute that if the trial court improperly included Carrier's 1981 indecent liberties conviction in his criminal history, then the judgment and sentence is invalid. As a threshold question, however, we must address whether this invalidity is evident from the “face” of Carrier's judgment and sentence.

¶ 13 The judgment and sentence does not itself reveal that a court dismissed Carrier's indecent liberties conviction. Evidence of dismissal comes from a separate dismissal order issued in 1985. The commissioner concluded that we cannot consider a document such as Carrier's dismissal order in deciding whether the judgment and sentence is valid on its face.

¶ 14 We recently reviewed the meaning of the phrase “on its face” under RCW 10.73.090. In In re Personal Restraint of Coats, 173 Wash.2d 123, 138, 267 P.3d 324 (2011), we explained that “[s]ince at least 1947, we have not limited our review to the four corners of the judgment and sentence.” After summarizing our recent precedent, we noted that “[t]aken together, we have found invalidity based upon charging documents, verdicts, and plea statements of defendants on plea of guilty.” Id. at 140, 267 P.3d 324. On the other hand, “[w]e have not rested our decision on jury instructions, trial motions, and other documents that relate to whether the defendant received a fair trial.” Id.

¶ 15 Our precedent should not be read to impose a bright-line rule or an exhaustive list of documents that we may consider in determining whether a judgment and sentence is “valid on its face.” RCW 10.73.090(1). Rather, it permits consideration of documents that bear on the trial court's authority to impose a valid judgment and sentence.

¶ 16 Carrier's 1985 dismissal...