In re Personal Restraint of Scott
| Decision Date | 10 March 2009 |
| Docket Number | No. 34686-9-II.,34686-9-II. |
| Citation | 202 P.3d 985,149 Wn. App. 213 |
| Court | Washington Court of Appeals |
| Parties | In the Matter of PERSONAL RESTRAINT OF Joshua Dean SCOTT, Petitioner. |
Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Petitioner.
Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.
¶ 1 Joshua D. Scott seeks relief from personal restraint after the sentencing court imposed two 60-month consecutive firearm enhancements on two counts of first degree robbery and one 36-month firearm enhancement on one count of first degree possession of stolen property. In the amended information, the State notified Scott of its intention to invoke the firearm sentence enhancement provisions of former RCW 9.94A.310 (1999). But it submitted deadly weapon special verdict forms to the jury rather than firearm enhancement special verdict forms. The jury returned the special verdict forms, finding that Scott was armed with a deadly weapon during the commission of the charged offenses. When Scott was sentenced, the law allowed the judge, rather than the jury, to enter a finding that the deadly weapon at issue was a firearm, but the sentencing court did not do so. Accordingly, the record does not support the firearm enhancement provisions of Scott's judgment and the sentence enhancement portion of Scott's judgment and sentence is invalid on its face. We grant the petition and remand with directions to correct Scott's judgment and sentence by imposing deadly weapon enhancements in place of the firearm enhancements.
¶ 2 On September 16, 2000, Scott and Douglas James-Anderson parked a stolen Chevrolet Blazer in front of Cascade Custom Jewelers, entered the store, threatened to kill two employees with a rifle, and tied the employees' hands behind their backs.1 Scott and James-Anderson stole about $80,000 worth of goods, including jewelry, diamonds, cash, three guns, and a wallet from a store employee's pocket. The police arrested Scott and James-Anderson shortly after they left the jewelry store, recovering two rifles and four pistols from the Blazer. Scott confessed.
¶ 3 The State charged Scott by amended information with two counts of first degree robbery (counts I and II), first degree unlawful possession of a firearm (count IV), first degree possession of stolen property (count V), two counts of possession of a stolen firearm (counts VI and VII), and two counts of firearm theft (counts VIII and IX). As relevant here, the amended information included the following sentencing enhancements for first degree robbery (counts I and II):
[T]he defendant or an accomplice was armed with a deadly weapon or displayed what appeared to be a firearm or other deadly weapon, to-wit: a rifle, that being a firearm as defined in [former] RCW 9.41.010 [1997], and invoking the provisions of [former] RCW 9.94A.310 and adding additional time to the presumptive sentence as provided in [former] RCW 9.94A.370 [1999].
Suppl. Br. of Resp't, App. B. The information for count V also charged that Scott possessed
stolen property other than a firearm, to-wit: a 1990 Chevrolet Blazer, of a value in excess of $1,500.00, belonging to Esperanza Mattos, with intent to appropriate said property to the use of any person other than the true owner or person entitled thereto, that being a firearm as defined in [former] RCW 9.41.010, and invoking the provisions of [former] RCW 9.94A.310 and adding additional time to the presumptive sentence as provided in [former] RCW 9.94A.370.
Suppl. Br. of Resp't, App. B.
¶ 4 The trial court instructed the jury on deadly weapon sentencing enhancements, but it did not instruct the jury on firearm enhancements.
¶ 5 The jury entered guilty verdicts on counts I, II, IV, V, VI, and VII and not guilty verdicts on counts VIII and IX. The jury also returned special verdicts for the sentencing enhancements, finding that Scott was "armed with a deadly weapon" when he committed first degree robbery (counts I and II) and first degree possession of stolen property (count V).
¶ 6 The sentencing court wrote on Scott's judgment and sentence, "as charged in the Amended Information[, a] special verdict/finding for use of firearm was returned on Count(s) I, II, V RCW 9.94A.602, .510." Suppl. Br. of Resp't, App. A (emphasis added). The sentencing court imposed two 60-month firearm sentencing enhancements on counts I and II and a 36-month firearm enhancement on count V, each to run consecutively.
¶ 7 Scott filed a direct appeal with this court, arguing in part that count V of the amended information did not give him adequate notice of a firearm enhancement because it omitted the critical words "and in the commission thereof the defendant was armed with a firearm, to wit: a rifle." James-Anderson, 116 Wash.App. 1053, 2003 WL 1986423, at *9. We applied the Kjorsvik2 test for post-verdict challenges to the sufficiency of an information and held that the information was sufficient to notify Scott of a firearm enhancement. James-Anderson, 116 Wash.App. 1053, 2003 WL 1986423, at *10. We also reversed Scott's convictions for possession of stolen firearms (counts VI and VII) because the evidence was insufficient to support the element that Scott knew the firearms in the Blazer were stolen. James-Anderson, 116 Wash.App. 1053, 2003 WL 1986423, at *10.
¶ 8 Scott was resentenced on April 9, 2004, and did not appeal that judgment and sentence. He filed this personal restraint petition (PRP) over two years later, on April 11, 2006.
¶ 9 As a threshold matter, we note that a personal restraint petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Pers. Restraint of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986). On direct appeal, Scott argued that count V of the amended information did not give him adequate notice of a firearm enhancement because it omitted the critical words "and in the commission thereof the defendant was armed with a firearm, to wit: a rifle." James-Anderson, 116 Wash.App. 1053, 2003 WL 1986423, at *9. We held that the information was sufficient to charge a firearm enhancement. James-Anderson, 116 Wash.App. 1053, 2003 WL 1986423, at *10. We did not decide the issue before us here, whether the judgment and sentence misstated the jury's verdict. Accordingly, the prior direct appeal which addressed a substantially different issue, does not preclude the relief from the erroneous firearm enhancement on count V requested here. See In re Taylor, 105 Wash.2d at 688, 717 P.2d 755.
¶ 10 The petitioner may raise new issues, including both errors of constitutional magnitude that result in actual and substantial prejudice and nonconstitutional errors that constitute "a fundamental defect which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990); In re Pers. Restraint of Mercer, 108 Wash.2d 714, 721, 741 P.2d 559 (1987); In re Pers. Restraint of Hews, 99 Wash.2d 80, 87, 660 P.2d 263 (1983). Regardless of whether the petitioner bases his challenges on constitutional or nonconstitutional error, he must support his petition with facts or evidence on which his claims of unlawful restraint are based and not rely solely on conclusory allegations. Cook, 114 Wash.2d at 813-14, 792 P.2d 506.
¶ 11 We must also determine whether Scott's PRP is timely.
¶ 12 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.
A PRP is a collateral attack on a judgment. RCW 10.73.090(2). Scott's judgment and sentence became final on April 9, 2004, when his judgment was filed upon resentencing. See RCW 10.73.090(3)(a). Accordingly, when Scott filed the present petition on April 11, 2006, more than one year had elapsed and we cannot review petitioner's claims unless either (1) the time bar does not apply because his judgment and sentence is facially invalid, (2) the judgment and sentence was not rendered by a court of competent jurisdiction, or (3) one or more of the six exceptions to the time bar enumerated in RCW 10.73.1003 applies. We hold that the time bar does not operate here because Scott's judgment and sentence is facially invalid.
¶ 13 Either a constitutional or nonconstitutional error can render a judgment and sentence facially invalid under RCW 10.73.090. In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 866, 50 P.3d 618 (2002). A judgment and sentence is facially invalid if it evidences the invalidity without further elaboration. Goodwin, 146 Wash.2d at 866, 50 P.3d 618. But courts may look at documents other than the judgment and sentence, including charging documents and verdict forms, to determine facial invalidity. See In re Pers. Restraint of Richey, 162 Wash.2d 865, 870-72, 175 P.3d 585 (2008); In re Pers. Restraint of Hemenway, 147 Wash.2d 529, 532, 55 P.3d 615 (2002).
¶ 14 Here, the jury was instructed on deadly weapon sentencing enhancements and returned special verdicts finding that Scott was "armed with a deadly weapon" when he committed the crimes. Scott's judgment and sentence misstates the jury's special verdict by (1) stating that the jury found that Scott was armed with a firearm (rather than a deadly weapon) when he committed the crimes and (2) imposing firearm enhancements without a jury or judicial finding that Scott was armed with a firearm. Accordingly, RCW 10.73.090 does not bar Scott's petition because the judgment and sentence evidences, without further elaboration, that firearm enhancements were imposed on deadly weapon special verdicts and, thus, the judgment and sentence is facially invalid. State v. Recuenco, 163 Wash.2d...
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