In re Smalls

• Decision Date: 14 July 2014
• Docket Number: No. 68740–9–I.,68740–9–I.
• Court: Washington Court of Appeals
• Parties: In the Matter of the Personal Restraint Petition of Benjamin Lee SMALLS, Petitioner.

182 Wash.App. 381
335 P.3d 949

In the Matter of the Personal Restraint Petition of Benjamin Lee SMALLS, Petitioner.

No. 68740–9–I.

Court of Appeals of Washington, Division 1.

July 14, 2014.

335 P.3d 950

Nielsen Broman Koch PLLC, Attorney at Law, David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Amy R. Meckling, King County Prosecutor's Office, Seattle, WA, for Respondent.

Opinion

LEACH, J.

182 Wash.App. 383

¶ 1 Benjamin Lee Smalls collaterally attacks his 2009 convictions for assault in the second degree and

182 Wash.App. 384

murder in the second degree. He seeks to withdraw his guilty pleas to both crimes and dismissal of the assault charge. Smalls's judgment and sentence shows that he was charged and convicted of assault in violation of the statute of limitations. As a result, the State concedes that the assault charge should be dismissed.

¶ 2 Smalls also contends that this facial error and a sentencing error for his murder conviction entitle him to collaterally challenge his guilty plea to murder more than one year after his judgment and sentence became final. Because he identifies no facial error relating to his murder conviction, RCW 10.73.090(1) bars this collateral challenge. Smalls's sole remedy, which he has not requested, is correction of his sentence for this conviction.

FACTS

¶ 3 On March 3, 2008, the State charged Smalls with murder in the second degree for shooting and killing Stephen Kirk in 2002. The State sought a firearm sentencing enhancement. On April 25, 2008, the State filed an amended information that added a charge for assault in the second degree for pointing a handgun at a witness after shooting Kirk. The State also sought a firearm sentencing enhancement on this count.

335 P.3d 951

¶ 4 Smalls pleaded guilty to murder in the second degree and to assault in the second degree¹ in exchange for dismissal of the firearm enhancement request on the assault charge and dismissal of a pending charge in an unrelated case.² Based upon an offender score of 9, the trial court imposed concurrent sentences of 418 months' confinement for the murder count and 84 months' confinement for the assault count.

182 Wash.App. 385

¶ 5 Smalls appealed to this court. He alleged that his plea was involuntary because of postplea changes in the law about the length of community custody authorized for his crimes, as well as numerous other claims. In an unpublished opinion, we remanded for entry of an order amending the community custody period but otherwise affirmed Smalls's judgment and sentence. This court issued its mandate on March 18, 2011.

¶ 6 On April 12, 2012, Smalls filed in the sentencing court a CrR 7.8(b) motion for relief from judgment seeking “to have his sentence for murder in the second degree with firearm enhancement and assault in the second degree vacated; to withdraw his plea to both counts I and II and to have count II dismissed....” The court transferred Smalls's motion to this court for consideration as a personal restraint petition.

STANDARD OF REVIEW

¶ 7 To prevail on a collateral attack on a judgment and sentence by way of a personal restraint petition, a petitioner must establish that a constitutional error has occurred and it has resulted in actual and substantial prejudice or that a nonconstitutional error has caused a complete miscarriage of justice.³

ANALYSIS

¶ 8 The State's appropriate concession on the assault conviction leaves one issue for this court to decide: Can Smalls collaterally attack his murder conviction on the grounds alleged? He cannot, because he filed his motion more than one year after the judgment in his case became final and no recognized exception to this time bar applies to his allegations.

182 Wash.App. 386

¶ 9 RCW 10.73.090 prohibits filing a collateral attack on a judgment and sentence in a criminal case 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.” Smalls contends that this one-year requirement does not apply to his challenge because his judgment and sentence is invalid on its face and the trial court was not a court of competent jurisdiction. In addition, Smalls claims that a statutory exception to the one-year limit applies because “[t]he sentence imposed was in excess of the court's jurisdiction.”⁴

¶ 10 The State concedes that Smalls's judgment and sentence is facially invalid in two ways. It affirmatively shows that the State charged Smalls with assault in the second degree after the statute of limitations expired. Thus, the trial court had no authority to convict Smalls of that crime. As Smalls has requested, he is entitled to withdraw his guilty plea to this crime and have the corresponding charge dismissed.

¶ 11 The State also concedes the facial invalidity of the sentence imposed for Smalls's murder conviction. A sentence imposed based upon an erroneous offender score is facially invalid.⁵ The trial court used an offender score of 9 for the murder conviction, including 2 points for the invalid assault conviction. His correct offender score is 7, which reduces his standard range from 298–397 months to 216–316 months, plus 60

335 P.3d 952

months for the firearm enhancement. Therefore, Smalls's 418–month sentence violates Washington law. Smalls is entitled to some relief from this sentence under RAP 16.4(c)(2).⁶ He has not requested this.

182 Wash.App. 387

¶ 12 Smalls asks to withdraw his murder plea. But the fact that a portion of the judgment and sentence is facially invalid does not make the entire judgment and sentence invalid. It “does not affect the finality of that portion of the judgment and sentence that was correct and valid at the time it was pronounced.”⁷

¶ 13 Smalls does not challenge the facial validity of the murder conviction, only the facial validity of the sentence for it. Instead, he challenges the subject matter jurisdiction of the trial court to enter the murder conviction⁸ on three grounds. First, he alleges that the entire plea bargain exceeded the trial court's authority because he pleaded guilty to the assault charge and agreed to a sentence based upon an offender score that included the erroneous assault charge. Second, he asserts that the plea bargain was inconsistent with the interests of justice and prosecution standards, in violation of RCW 9.94A.431(1), because it required conviction for a time-barred crime and a sentence based upon an incorrect offender score. Finally, he claims that his plea was involuntary because of misinformation about the possible charges and sentence that he could face at trial. We reject these contentions.

¶ 14 The superior court has original subject matter jurisdiction over all felony criminal proceedings.⁹ A court lacks subject matter jurisdiction when it attempts to decide a type of controversy that it has no authority to decide.¹⁰ A court does not lack subject matter jurisdiction merely

182 Wash.App. 388

because it may lack authority to enter a given order.¹¹ Smalls concedes our holding that a statute of limitations does not divest a trial court of subject matter jurisdiction, but preserves this issue for further review.¹² While Smalls could not waive the statute of limitations for assault by pleading guilty,¹³ he fails to show that the trial court lacked subject matter jurisdiction to enter his judgment and sentence. It lacked statutory authority to enter only parts of it.

¶ 15 In re Personal Restraint of Snively¹⁴ controls the timeliness of Smalls's three challenges to his murder conviction. In Snively, the defendant sought to withdraw a guilty plea to indecent liberties because of a facially invalid sentence. The Supreme Court held that he could not, explaining, “Although Snively avoids the time bar so as to allow him to challenge the facially invalid sentence, his claim that his plea was involuntary due to misinformation as to sentencing is not by itself an exempt ground for relief

335 P.3d 953

under RCW 10.73.100.”¹⁵ Accordingly, the court concluded, “Snively may not rely on the existence of a facial sentencing error to assert other time barred claims.”¹⁶ When...