In re Personal Restraint of Rivera

• Decision Date: 19 October 2009
• Docket Number: No. 61835-1-I.,61835-1-I.
• Citation: 218 P.3d 638,152 Wn. App. 794
• Parties: In the Matter of the PERSONAL RESTRAINT OF Salvador Hernandez RIVERA, Petitioner.
• Court: Washington Court of Appeals

218 P.3d 638

152 Wn. App. 794

In the Matter of the PERSONAL RESTRAINT OF Salvador Hernandez RIVERA, Petitioner.

No. 61835-1-I.

Court of Appeals of Washington, Division 1.

October 19, 2009.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

David Stuart McEachran, Hilary A. Thomas, Whatcom County Prosecutors Office, Bellingham, WA, for Respondent.

PUBLISHED OPINION

GROSSE, J.

¶ 1 A trial court does not exceed its authority by imposing a firearm enhancement when the jury returns a special verdict making a deadly weapon finding if the firearm enhancement was properly charged and the fact that a firearm was used is necessarily reflected in the jury's general verdict of guilt.

¶ 2 Rivera challenges the judgment and sentence in a personal restraint petition contending that it is facially invalid because the firearm enhancement was not authorized by the jury's special verdict making a deadly weapon finding. Because the judgment and sentence properly cited the firearm enhancement statute, Rivera fails to show that the judgment and sentence was invalid on its face. But even looking beyond the face of the judgment and sentence, Rivera fails to establish that it is invalid. The firearm enhancement was authorized in law because the information provided notice of the enhancement and the jury's general verdict that Rivera was guilty of a shooting necessarily supported a finding that he used a firearm. Accordingly, we deny the personal restraint petition.

FACTS

¶ 3 The State charged Salvador Rivera with first degree murder while armed with a deadly weapon. The information alleged:

MURDER IN THE FIRST DEGREE, COUNT I: That the defendants, SALVADOR HERNANDEZ RIVERA AND JOSE MANUEL RIVERA-HERNANDEZ, and each of them, then and there being in said county and state, on or about the 20th day of March, 1998, with premeditated intent to cause the death of another person, did shoot Matthew Garza, thereby causing the death of Mr. Garza, a human being, in violation of RCW 9A.32.030(1)(a), which violation is a Class "A" Felony, and during the course or commission of said crime, the defendants or one of them was armed with a deadly weapon, to-wit: a .22 caliber handgun, for the purposes of the deadly weapon enhancement of RCW 9.94A.125 and 9.94A.310(3)(a).

The jury was instructed that, in order to convict Rivera, the State had to prove beyond a reasonable doubt "[t]hat on or about the 20th day of March 1998, Salvador Hernandez Rivera shot Matthew Garza." The jury was also given a special verdict instruction stating:

For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime.

A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.

¶ 4 The jury found Rivera guilty as charged and returned a special verdict finding that he was "armed with a deadly weapon at the time of the commission of the crime." The trial court sentenced Rivera to 333 months confinement and imposed an additional 60 months based on the jury's deadly weapon finding.

¶ 5 Rivera appealed and this court affirmed his conviction;¹ the mandate was issued on May 17, 2002. He then filed a personal restraint petition, which was dismissed on October 6, 2003. Following the State Supreme Court's denial of Rivera's motion for discretionary review and subsequent motion to modify, this court issued a certificate of finality on May 28, 2004.

¶ 6 On June 4, 2008, Rivera filed the current petition as a CrR 7.8 motion in Whatcom County Superior Court. On June 5, 2008, the superior court denied the motion as untimely and transferred the motion to this court to be considered as a personal restraint petition. On January 21, 2009, this court appointed counsel and ordered that the petition be referred to a panel of judges for a determination on the merits, finding that the petition raised "a legitimate issue of whether petitioner is entitled to relief from his enhanced sentence under State v. Recuenco, 163 Wash.2d 428, 180 P.3d 1276 (2008)." Supplemental briefing was then submitted. As of the time of the briefing, Rivera remained incarcerated on this charge.

ANALYSIS

¶ 7 Rivera's personal restraint petition attacks the validity of the judgment and sentence, contending that the trial court unlawfully imposed the 60-month term of confinement for a deadly weapon enhancement because the statute limits deadly weapon enhancements to 24 months and, accordingly, under our State Supreme Court's recent decision in State v. Recuenco² (Recuenco III), reversal is required. The State responds that Rivera's petition should be dismissed as untimely because it was filed well over a year after his sentence was final and he fails to show it is invalid on its face. We agree.

¶ 8 RCW 10.73.090 limits the time for filing a personal restraint petition:

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 sentence that is not authorized by law is invalid on its face.³ Rivera filed this petition four years after his judgment and sentence became final on May 28, 2004, but contends that it is not time barred because, under Recuenco III, the sentence was not authorized in law and is therefore invalid on its face.

¶ 9 The court's findings in the judgment and sentence state: "The defendant was found guilty on October 13, 1998, by jury verdict of murder in the first degree (while armed with a deadly weapon)," citing RCW 9.94A.125 and RCW 9.94A.310(3)(a).⁴ The judgment and sentence also lists the term of confinement as "333 ± 60 months," with a handwritten notation stating: "for deadly weapon." While the judgment and sentence's use of the deadly weapon language is confusing, this does not render the judgment and sentence facially invalid because it cites the correct statutory authority for the five-year firearm enhancement.

¶ 10 Former RCW 9.94A.310(3)(a) (1998) authorized the five-year enhancement if the offender was armed with a firearm.⁵ The other statute cited, former RCW 9.94A.125 (1998), did not authorize the 24-month deadly weapon enhancement; it only authorized the entry of a deadly weapon special verdict and defined deadly weapon to include any "pistol, revolver, or any other firearm."⁶ And in Recuenco III the court specifically recognized that this statute provides a basis for a procedure by which a jury could make a firearm finding by special verdict.⁷ Thus, on its face, the firearm enhancement was authorized in law and Rivera fails to show that the judgment and sentence is otherwise facially invalid. His personal restraint petition is therefore time barred and, accordingly, dismissed.

¶ 11 But even if we were to look beyond the face of the judgment and sentence, Rivera fails to show that it is invalid. We need look no further than the information, which shows that the firearm enhancement was charged. As was the case with the judgment and sentence, the information used confusing deadly weapon language but cited the specific statute authorizing the firearm enhancement. The information alleged that, during the commission of the crime, Rivera "was armed with a deadly weapon, to-wit: a .22 caliber handgun, for the purposes of the deadly weapon enhancement of RCW 9.94A.125 and 9.94A.310(3)(a)," the same statutes cited in the judgment and sentence. As discussed above, citing to this statute does not establish that the State sought only a deadly weapon enhancement; the statute defined deadly weapons to include firearms and, since there is no comparable statute specifically authorizing a firearm special verdict, it provided a basis for the jury's firearm special verdict. Thus, because it was charged in the information, the trial court did not exceed its authority by imposing the firearm enhancement.

¶ 12 Rivera's reliance on Recuenco III is misplaced. In Recuenco III, the court held that the trial court's imposition of a firearm enhancement based on a special verdict finding of a deadly weapon was a sentencing error that was not subject to harmless error analysis.⁸ There, the defendant was charged with second degree assault for threatening his wife with a handgun, and the information, jury instructions, and special verdict form included only a deadly weapon allegation, not a firearm allegation.⁹ But at sentencing, the trial court imposed the 36-month firearm enhancement rather than the 12-month deadly weapon enhancement authorized by the statute in effect at the time.¹⁰

¶ 13 This court affirmed, holding that any possible error was harmless because the only weapon mentioned at any stage of the proceedings was a firearm.¹¹ Our State Supreme Court reversed, holding that imposing the firearm enhancement without a firearm finding by the jury violated Recuenco's Blakely¹² Sixth Amendment rights and that the federal constitution prohibited harmless error analysis of Blakely Sixth Amendment violations because they were structural errors.¹³ The United States Supreme Court reversed, holding that under federal law the failure to submit a sentencing factor to the jury is not a structural error and is therefore subject to harmless error analysis.¹⁴ But the United States Supreme Court also remanded for our State Supreme Court to consider whether the failure to submit a sentencing factor to the jury is subject to harmless error analysis under Washington law.¹⁵

¶ 14 On remand, in Recuenco III, the court concluded that, under Washington law, harmless error analysis does not apply when the trial court imposes a sentence not authorized by the jury's finding.¹⁶ The court did not analyze it as a Blakely error, but recast it as sentencing error that was not subject to harmless error analysis. The court explained that, because the firearm...