In re Scott

Decision Date01 March 2012
Docket NumberNo. 82951–9.,82951–9.
Citation271 P.3d 218
PartiesIn the Matter of the Personal Restraint of Joshua Dean SCOTT, Respondent.
CourtWashington Supreme Court

OPINION TEXT STARTS HERE

Michelle Hyer, Kathleen Proctor, Thomas Charles Roberts, Pierce County Prosecutor's Office, Tacoma, WA, for Petitioner.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Respondent.

CHAMBERS, J.

¶ 1 In the wake of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), we held that a trial judge lacked the authority to impose a firearm enhancement based on a jury's deadly weapon special verdict. State v. Recuenco, 163 Wash.2d 428, 442, 180 P.3d 1276 (2008) (Recuenco III). We now must decide whether a court may refer to verdict forms to determine whether a judgment and sentence is valid on its face and thus not subject to collateral attack under RCW 10.73.090 and whether Recuenco III applies retroactively to cases that were final when it was announced. We conclude that a court may consult the verdict forms to illuminate whether a judgment and sentence is valid on its face but that Recuenco III is not retroactive. We reverse the Court of Appeals and dismiss this petition.

FACTS

¶ 2 In September 2000, Joshua Dean Scott and his partner in crime, Douglas Sean James–Anderson, robbed Cascade Custom Jewelers in south Tacoma. They brought several guns, including an AR–15 semiautomatic rifle. Alerted by a silent alarm, the police were waiting in the store's parking lot when Scott and James–Anderson emerged. They both ran, and they both were caught. Scott was charged with and convicted of multiple counts of first degree robbery, unlawful possession of firearms, possession of stolen property, and possession of stolen firearms. The jury also found by special verdict that Scott was armed with a deadly weapon while committing most of the counts. On direct review, the Court of Appeals reversed the possession of stolen firearms charges, finding insufficient evidence that Scott knew the guns used in the robbery had been stolen, and remanded for resentencing.

¶ 3 Scott was resentenced on April 9, 2004. He received a total sentence of 213 months, including 156 months for the firearm enhancements. The trial judge checked a box on Scott's judgment and sentence indicating that [a] special verdict/finding for use of firearm was returned on Count(s) I, II, V.” J. & Sentence at 2. The jury had returned a deadly weapon verdict. Aside from checking the box, the trial judge made no formal, separate finding of fact that Scott was armed with a firearm.

¶ 4 Under the “Hard Time for Armed Crime Act of 1995 (Initiative 159), the penalty for committing a crime while armed with a firearm is considerably longer than the penalty for committing a crime with any other deadly weapon. Compare Laws of 1995, ch. 129, § 3 (firearm enhancements), with § 2 (deadly weapon enhancements).1 For example, under the initiative, committing a class A felony with a firearm would come with a five year sentencing enhancement; the same crime committed with a deadly weapon would carry only a three year enhancement. Id. Scott did not appeal again, and on May 9, 2004, his judgment and sentence became final.

¶ 5 Six weeks later, the United States Supreme Court announced Blakely, 542 U.S. 296, 124 S.Ct. 2531, placing Washington's sentencing procedures into some doubt.2 The next year, we held both that Blakely error could not be harmless and that Blakely was not retroactive. State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005) ( Recuenco I); State v. Evans, 154 Wash.2d 438, 114 P.3d 627 (2005). In 2006, well after the one year time bar had lapsed, Scott filed this personal restraint petition. Also that year, the United States Supreme Court reversed our opinion in Recuenco I and held that Blakely error could be harmless under federal law. Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (Recuenco II). On remand, this court concluded that harmless error was not the proper analytical approach to allegations of Blakely error, at least in the context of a firearm enhancement based on a deadly weapon finding. Instead, [t]he error ... occurred when the trial judge imposed a sentence enhancement for something the State did not ask for and the jury did not find. The trial court simply exceeded its authority in imposing a sentence not authorized by the charges.” Recuenco III, 163 Wash.2d at 442, 180 P.3d 1276. Given the way Recuenco was framed, we had no occasion to consider whether it applied to cases that were final when it was announced.

¶ 6 While the Court of Appeals concluded that the trial court had the authority to find Scott was armed with a firearm and thus subject to the firearm enhancement, given the lack of a written finding, it concluded that Scott's judgment and sentence was facially invalid, granted his petition, and remanded for resentencing based on the lower, deadly weapons enhancements. In re Pers. Restraint of Scott, 149 Wash.App. 213, 222, 202 P.3d 985 (2009). Shortly afterward, a different division of the court below concluded on substantially similar facts that a pre- Blakely judgment and sentence imposing a firearm enhancement was facially valid and thus not subject to collateral attack because the fact a firearm was used was “necessarily reflected in the jury's general verdict of guilt,” despite the lack of a formal written finding. In re Pers. Restraint of Rivera, 152 Wash.App. 794, 796, 218 P.3d 638 (2009), review granted, No. 83923–9 (Sept. 12, 2011), and consolidated under In re Pers. Restraint of Jackson, No. 82363–4 (Nov. 3, 2011). We granted the State's motion for review. In re Pers. Restraint of Scott, 168 Wash.2d 1010, 227 P.3d 295 (2010).

1. Facial Validity

¶ 7 A criminal judgment and sentence that is valid on its face may not be challenged more than one year after it becomes final except under enumerated statutory grounds not raised here. RCW 10.73.090, .100. Scott contends that his judgment and sentence is invalid on its face because he was sentenced for a firearm enhancement based on a jury's special verdict that he possessed a deadly weapon. The State contends that the judgment and sentence is valid on its face because Scott was properly charged with a firearm enhancement and the evidence established that only a firearm was used. Jury verdicts, charging documents, and documents signed in connection to a plea agreement are relevant to the facial validity of a judgment and sentence but will only be considered to the extent they bear on validity. See generally In re Pers. Restraint of Coats, 173 Wash.2d 123, 131–40, 267 P.3d 324 (2011); In re Pers. Restraint of Stoudmire, 141 Wash.2d 342, 353, 5 P.3d 1240 (2000). The Court of Appeals concluded that the judgment and sentence was not facially valid because it did not mirror the verdict forms and because the trial court made no formal finding of fact that Scott was armed. Scott argued below that several different exceptions to the time bar applied, but in this court, he contends only that his judgment and sentence is invalid on its face.

¶ 8 Determining whether a judgment and sentence is “invalid on its face” and thus not subject to the time bar has long vexed this court. See generally Coats, 173 Wash.2d at 131–40, 267 P.3d 324. “Invalid on its face” is a term of art that, like many terms of art, obscures, rather than illuminates its meaning. Id. Generally speaking, a judgment and sentence is not valid on its face if it demonstrates that the trial court did not have the power or the statutory authority to impose the judgment or sentence. “Invalid on its face” does not mean that the trial judge committed some legal error. A trial court does not lose its authority because it commits a legal error, and most legal errors must be addressed on direct review or in a timely personal restraint petition or not at all.

¶ 9 For example, a judgment for a crime charged after the statute of limitations has run is not valid on its face. Stoudmire, 141 Wash.2d at 353–54, 5 P.3d 1240. The erroneous judgment was not merely the product of legal error; the trial judge simply did not have authority to entertain the charges. Id. Similarly, a judgment for a crime that did not exist when charged is not valid on its face. In re Pers. Restraint of Thompson, 141 Wash.2d 712, 717–19, 10 P.3d 380 (2000). Again, the trial judge simply did not have the authority to entertain the charges. Id. at 719, 10 P.3d 380; see also In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 866–67, 50 P.3d 618 (2002) (finding a judgment and sentence that included washed out crimes in the offender score was not valid on its face). In both Stoudmire and Thompson, the error was not apparent without consulting the charging documents, which we did not hesitate to do.

¶ 10 By contrast, RCW 10.73.090 does not provide a way for a petitioner to avoid the one year time limit for motions to withdraw a guilty plea on the theory that the judgment and sentence is not valid on its face because it is the product of an involuntary plea. CrR 7.8; In re Pers. Restraint of Hemenway, 147 Wash.2d 529, 532, 55 P.3d 615 (2002). The trial judge still has the authority to render judgment and any error must be raised in a timely challenge or a timely motion to withdraw the plea. CrR 7.8; see also In re Pers. Restraint of Clark, 168 Wash.2d 581, 586–87, 230 P.3d 156 (2010) (involuntary plea does not render judgment not valid on its face). Similar principles apply to convictions. In re Pers. Restraint of Hinton, 152 Wash.2d 853, 857, 100 P.3d 801 (2004) (citing In re Pers. Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002) (judgment predicated on a nonexistent crime not valid on its face)). Thus, the general rule is that a judgment and sentence is not valid on its face if the trial judge actually exercised authority (statutory or otherwise) it did not have. Verdict forms, plea agreements, and charging documents...

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