IN RE GREENING

• Decision Date: 21 September 2000
• Docket Number: No. 68559-2.,68559-2.
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of David GREENING, Petitioner.

9 P.3d 206

141 Wash.2d 687

In the Matter of the Personal Restraint of David GREENING, Petitioner.

No. 68559-2.

Supreme Court of Washington, En Banc.

Argued May 19, 2000.

Decided September 21, 2000.

David L. Greening, Walla Walla, pro se.

Sheryl Gordon McCloud, Seattle, for Petitioner.

John Ladenburg, Pierce County Prosecutor, John Christopher Hillman, Deputy Pierce County Prosecutor, Tacoma, for Respondent.

BRIDGE, J.

The only contested issues in this case are procedural. Both parties agree that, on the merits, nearly one-third of David Greening's 18 ¼ year sentence was unlawfully imposed. Specifically, his firearm enhancements were to run consecutively to each other, contrary to former RCW 9.94A.310(3)(e) (Laws of 1995, ch. 129, § 2), as subsequently construed by this court. Greening's attempt to raise this issue in his first, timely filed pro se personal restraint petition (PRP), however, was inarticulate and ineffective. At issue here is whether this second petition, filed more than a year after Greening's sentence, is time barred, improperly successive, or abusive of the writ. Because we find none of these procedural barriers applicable here, we grant the petition.

FACTS

On August 28, 1997, David Greening, a.k.a. Nathan Johnson, pleaded guilty to, and was sentenced for, three offenses: second degree assault, first degree burglary, and first degree theft. The Pierce County Superior Court found no aggravating factors, and Greening was given concurrent standard-range sentences of 63 months, 87 months, and 33 months, respectively. Pursuant to the "Hard Time for Armed Crime" initiative codified at RCW 9.94A.310(3), firearm enhancements were added to all three offenses: 36 months, 60 months, and 36 months, respectively. Section 4.2(b) of the judgment and sentence provided, "Sentence enhancements in Counts I, II & III shall run consecutive to each other." Suppl. Br. of Resp't, App. D, Judgment and Sentence at 6. Greening did not appeal. Nine months after his sentencing, though, this court ruled in In re Post Sentencing Review of Charles, 135 Wash.2d 239, 245-46, 254, 955 P.2d 798 (1998), that firearm enhancements in nonexceptional sentences must be run concurrently to each other under former RCW 9.94A.310(3)(e)¹ and former RCW 9.94A.400(1)(a) (Laws of 1986, ch. 257, § 28).

On August 10, 1998, acting without counsel, Greening timely filed a PRP in the Court of Appeals, claiming, inter alia, "my charges werent [sic] ran [sic] together the proper way...." PRP at 2. One of his formal assignments of error was that "they charged me with three gun enhanc[e]ments, and three felony cases, when all the charges should have been ran [sic] together." Id. at 2b (second unnumbered page after 2). Nine days later, Division Two's chief judge summarily dismissed the PRP for presenting unsupported claims. Greening's one-year RCW 10.73.090 deadline for collaterally challenging his sentence expired on August 28, 1998.

On October 16, 1998, Greening filed an untimely motion for reconsideration, this time expressly citing Charles as support for his consecutive enhancement claim. Treating the pro se pleading as a motion for discretionary review, the Court of Appeals transferred it to this court on October 20, 1998. On December 20, 1998, this court's commissioner rejected the motion as untimely filed. More than two months later, on February 24, 1999, Greening filed a pro se motion to modify the commissioner's ruling, which was also untimely and rejected on that basis. On September 20, 1999, Greening filed this second pro se petition with this court, requesting relief based on Charles. We granted review and appointed counsel to represent Greening.

ANALYSIS

This case raises three questions. First, is Greening entitled to relief on the merits under RAP 16.4(c)(2)? Second, is his petition time barred under RCW 10.73.090? And third, is it improperly successive under RCW 10.73.140, RAP 16.4(d), or the abuse of the writ doctrine?

I

While this petition's procedural viability is vigorously disputed, its merits are not. Our rules of appellate procedure entitle a petitioner to collateral relief if his or her "sentence... was imposed or entered in violation of the ... laws of the State of Washington[.]" RAP 16.4(c)(2). Prosecutors agree that Greening's sentence enhancements were unlawfully imposed: "The State does not contest the fact that the defendant's sentence in this case was imposed contrary to the laws of the State of Washington, particularly RCW 9.94A.400(1)(a)."² Suppl. Br. of Resp't at 11.

We faced a related situation in In re Personal Restraint of Carle, 93 Wash.2d 31, 604 P.2d 1293 (1980). After pleading guilty to first degree robbery with a deadly weapon, Carle was sentenced in July 1978 to a maximum term of imprisonment not to exceed 20 years, plus a five year enhancement under RCW 9.41.025(1) (repealed July 1, 1984). Id. at 32, 604 P.2d 1293. He did not appeal. Id. Two months later, though, in State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978), this court ruled that the five year enhancement could not be imposed for a first degree robbery conviction. Carle petitioned for relief, which we granted under RAP 16.4(c)(2), reasoning, "Because the trial court herein imposed an erroneous sentence, and since the error has now been discovered, the court has both the power and the duty to correct it." Carle, 93 Wash.2d at 33-34, 604 P.2d 1293; see also In re Personal Restraint of Williams, 111 Wash.2d 353, 361-62, 759 P.2d 436 (1988)

(holding that "where a defendant was sentenced in violation of a provision of the state sentencing law[,][s]uch an error may be raised in a personal restraint petition") (citing Carle and RAP 16.4(c)(2)).³

Similarly, in In re Personal Restraint of Moore, 116 Wash.2d 30, 33, 803 P.2d 300 (1991), Moore had pleaded guilty in March 1980 and had been sentenced to life without the possibility of parole. He had not appealed. Id. at 32, 803 P.2d 300. Four months later, though, in State v. Martin, 94 Wash.2d 1, 8, 614 P.2d 164 (1980), we declared such a sentence unlawful following a guilty plea. Nine years then went by⁴ before Moore finally petitioned for relief from his unlawful sentence under our Martin decision. See Moore, 116 Wash.2d at 39, 803 P.2d 300. Noting that "failure to correct the defect could result in a denial of petitioner's due process rights," id. at 33, 803 P.2d 300, we granted Moore's petition, remanding for resentencing to life with the possibility of parole. Id. at 39, 803 P.2d 300. We explained, "Confinement beyond that authorized by statute is exactly the kind of fundamental defect which the rule we announced in [In re Personal Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990)⁵] was aimed at remedying." Moore, 116 Wash.2d at 33, 803 P.2d 300.⁶

Most similar to Greening's case, though, is In re Personal Restraint of Johnson, 131 Wash.2d 558, 933 P.2d 1019 (1997), where the petitioner had been sentenced a dozen years earlier "based on an incorrect calculation of his offender score." Id. at 569, 933 P.2d 1019. Johnson had not assigned error to his offender score calculation on direct appeal, but had done so in 1989 in his first PRP. Id. at 562, 933 P.2d 1019. Division One of the Court of Appeals had rejected Johnson's claim, though, on authority of a Division Three case decided after his sentencing, State v. Chavez, 52 Wash.App. 796, 799, 764 P.2d 659 (1988) (declining to treat overlapping sentences as one offense for purposes of offender score calculation). Five years later, though, this court overturned Chavez in In re Personal Restraint of Sietz, 124 Wash.2d 645, 650, 880 P.2d 34 (1994), prompting Johnson to file a second petition, citing Sietz. We granted the petition, finding that Sietz had revealed the erroneous, unlawful nature of Johnson's 1985 sentence.⁷Johnson,131 Wash.2d at 569,933 P.2d 1019.

On the merits, Greening's claim is indistinguishable. When he was sentenced in August 1997, former RCW 9.94A.310(3)(e) mandated that "any and all firearm enhancements... shall not run concurrently with any other sentencing provisions." The parties and the sentencing judge interpreted that statute in accordance with a controlling Division Two case decided just two months earlier, State v. Lewis, 86 Wash.App. 716, 937 P.2d 1325 (1997). In May 1998, however, we reversed Lewis, holding that firearm enhancements in nonexceptional sentences must run consecutively to other sentencing provisions, but concurrently to each other. Charles, 135 Wash.2d at 245-46, 254, 955 P.2d 798. Because Greening's sentence was imposed contrary to law, as the State itself acknowledges, the merit of his petition under RAP 16.4(c)(2) is manifest.

II

However, the State claims that this petition is procedurally barred because it was filed on September 20, 1999, more than a year after Greening's sentence became final on August 28, 1997, and because none of the statutory exceptions applies. RCW 10.73.090(1) provides:

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.

RAP 16.4(d) permits collateral relief only if allowable "under RCW 10.73.090, .100, and.130." While RAP 1.2(c) authorizes an appellate court to waive its own rules when necessary "to serve the ends of justice," RCW 10.73.090 is a statute, establishing a "mandatory rule" with no "good cause" or "ends of justice" exception. Shumway v. Payne, 136 Wash.2d 383, 398-99, 964 P.2d 349 (1998) (citing In re Personal Restraint of Benn, 134 Wash.2d 868, 938-39, 952 P.2d 116 (1998)).

Still, Greening argues, inter alia, that RCW 10.73.100(6) statutorily exempts this petition from the RCW 10.73.090 one-year time bar. RCW 10.73.100 reads, in relevant part:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is

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