In re Sorenson

Citation403 P.3d 109,200 Wash.App. 692
Decision Date03 October 2017
Docket NumberNo. 48111-1-II,48111-1-II
CourtWashington Court of Appeals
Parties IN RE the Personal Restraint of Ronald SORENSON, Petitioner.

Kenneth H. Kato, Attorney at Law, 1020 N. Washington St., Spokane, WA, 99201-2237, for Petitioner.

Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, P.O. Box 5000, Vancouver, WA, 98666-5000, for Respondent.

PART PUBLISHED OPINION

Lee, J.¶1 Ronald Sorenson filed this personal restraint petition (PRP) about 13 months after this court issued its mandate on his direct appeal. He asserts the petition is timely, despite the one year time-bar in RCW 10.73.090, because it was filed less than one year after the trial court corrected scrivener's errors on his judgment and sentence, as directed to do on remand. We hold his petition is time-barred because it was filed more than a year after the mandate on his direct appeal issued and the trial court did not exercise its independent judgment in correcting the scrivener's errors on remand.

¶2 In the unpublished portion of this opinion, we hold that even if Sorenson's petition is not time-barred, Sorenson fails to show that defense counsel was ineffective.

¶3 Accordingly, we dismiss Sorenson's PRP.

FACTS

¶4 The State charged Sorenson with multiple counts of child molestation.1 State v. Sorenson , No. 43199-8-II, slip op. at 2, 2014 WL 314675 (Wash Ct. App. Jan. 28, 2014 (unpublished), http://www.courts.wa.gov/opinions/pdf/D2% 2043199-8-I% 20% 20Unpublished% 20Opinion.pdf.) The jury convicted Sorenson of nine counts of child molestation. Sorenson appealed.

¶5 On January 28, 2014, in an unpublished decision, we affirmed Sorenson's convictions but remanded to the superior court with instructions to correct the scrivener's errors in the judgment and sentence. Sorenson , No. 43199-8-II, slip op. at 10. Specifically, we held:

Sorenson's judgment and sentence incorrectly states the dates that Sorenson committed the offenses in counts 2, 3, and 9. Sorenson committed count 2 between March 9, 2002 and March 8, 2004; count 3 between March 9, 2003 and March 8, 2006; and count 9 between August 23, 2006 and August 22, 2009. We accept the State's concession and remand to the trial court for it to correct Sorenson's judgment and sentence on counts 2, 3, and 9 to accurately reflect when Sorenson committed those crimes.
We affirm, but remand to correct scrivener's errors in Sorenson's judgment and sentence.

Br. of Resp't at App. B; Sorenson , No. 43199-8-II, slip op. at 10.

¶6 Sorenson appealed our decision to the Supreme Court. The Supreme Court denied review on July 9. State v. Sorenson , 180 Wn.2d 1022, 328 P.3d 902 (2014). On August 12, we issued our mandate to the trial court.

¶7 On September 3, Sorenson filed a "Waiver of Presence at Hearing for Correction of Scrivener's Errors." Br. of Resp't at App. D (some capitalization omitted). In this filing, Sorenson stated that he was "waiv[ing] [his] right to be present at the hearing for correction of scrivener's errors in the judgment and sentence." Br. of Resp't at App. D. The record before us does not contain further indication that a hearing was held.

¶8 On September 15, the trial court signed an order correcting Sorenson's judgment and sentence, as directed by our opinion. The trial court's order stated in part:

IT IS HEREBY ORDERED, ADJUGED AND DECREED that in the Judgment and Sentence filed on March 8, 2012, in State of Washington v. RONALD LEE SORENSON, Clark County Cause No. 10-1-01995-2 shall reflect on Page 1, Section 2.1, Count 02 crime dates between March 9, 2002 and March 8, 2004; Count 03 crime dates between March 9, 2003 and March 8, 2006, and Count 09 between August 23, 2006 and August 22, 2009.

Br. of Resp't at App. D. The trial court's order was filed the following day, on September 16.

¶9 Sorenson filed this PRP on September 15, 2015.

ANALYSIS

A. TIMELINESS OF PETITION

¶10 The threshold issue in Sorenson's collateral attack is whether his petition is timely. We hold that Sorenson's PRP is time-barred because it was filed more than one year after the mandate disposing of his direct appeal was issued, and the trial court did not exercise its discretion on remand in correcting the scrivener's errors, which would have restored the pendency of his appeal.

1. Legal Principles

¶11 In relevant part, RCW 10.73.090 provides that:

(1) 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 ....
....
(3) For the purposes of this section, a judgment becomes final on the last of the following dates:
(a) The date it is filed with the clerk of the trial court;
(b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction.

Our Supreme Court has stated that, "pursuant to RCW 10.73.090 [,] a judgment becomes final when all litigation on the merits ends." In re Pers. Restraint of Skylstad , 160 Wash.2d 944, 949, 162 P.3d 413 (2007).2 Thus, the question here is when did all litigation on the merits in Sorenson's case end when the mandate was issued or when the order correcting the judgment and sentence was filed?

¶12 In Skylstad , our Supreme Court considered whether a judgment was final while the defendant's sentence was still under appeal. Id. at 945, 162 P.3d 413. The timeline and procedural posture was determinative. Id. at 946, 162 P.3d 413.

¶13 On February 8, 2002, Skylstad was convicted in the trial court. Id. On October 7, 2003, the Court of Appeals affirmed the conviction but reversed the sentence. Id. On May 4, 2004, the Supreme Court denied review. Id. On May 14, 2004, the Court of Appeals issued its mandate. Id. On July 28, 2004, the trial court resentenced Skylstad, and he appealed his resentencing. Id. On October 11, 2005, the Court of Appeals affirmed Skylstad's appeal from the resentencing. Id. On November 21, 2005, Skylstad filed a PRP. Id. On December 15, 2005, the Court of Appeals dismissed the PRP as untimely, citing the May 14, 2004 mandate as the date of the final judgment. Id. On September 6, 2006, the Supreme Court denied review of Skylstad's appeal from the resentencing. Id. Finally, on September 15, 2006, the Court of Appeals issued its mandate on Skylstad's appeal from the resentencing. Id. at 947, 162 P.3d 413.

¶14 Our Supreme Court held that the Court of Appeals erred in relying on the May 14, 2004 mandate to dismiss Skylstad's PRP as time-barred. Id. at 946, 952, 162 P.3d 413. The court explained, "Skylstad's direct appeal from his conviction cannot be disposed of until both his conviction and sentence are affirmed and an appellate court issues a mandate terminating review of both issues." Id. at 954, 162 P.3d 413. The court reasoned that, because " [t]he sentence is the judgment’ " in criminal cases, the judgment is effectively vacated when a sentence is reversed. Id. at 950, 162 P.3d 413 (alteration in original) (quoting Berman v. United States , 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ). Thus, when the mandate was issued on May 14, 2004, there was no judgment in place because the sentence had been reversed; rather, the mandate was issued only with respect to the conviction. Id. at 953, 162 P.3d 413. Therefore, the judgment was not final when the May 14, 2004 mandate was issued because litigation on the merits of Skylstad's sentence continued. Id. at 955, 162 P.3d 413.

¶15 Our Supreme Court also considered the timeliness of a supplemental PRP that was filed during the pendency of a second appeal in State v. Contreras-Rebollar , 177 Wash.2d 563, 565, 303 P.3d 1062 (2013). There, the Court of Appeals affirmed Contreras-Rebollar's convictions but reversed his sentence and remanded for resentencing because the State did not produce evidence of Contreras-Rebollar's criminal history and community custody status. State v. Contreras–Rebollar , noted at 149 Wn.App. 1001, 2009 WL 448902, at *6. The mandate was issued in April 2010. Contreras-Rebollar , 177 Wash.2d at 564, 303 P.3d 1062. The trial court entered a resentencing order in July 2010. Id. Contreras-Rebollar then appealed that resentencing order. Id. In March 2011, while the appeal of his resentencing order was pending, he filed a PRP, which was consolidated with his appeal. Id. In August 2011, Contreras-Rebollar moved to supplement his PRP. Id. at 564-65, 303 P.3d 1062. The motion was granted, and in November 2011, he filed the supplement. Id. at 565, 303 P.3d 1062. In June 2012, the Court of Appeals again remanded for resentencing but denied the supplemental PRP as untimely. Id. In denying the supplemental PRP as untimely, the Court of Appeals relied on the mandate issued on April 2010. State v. Contreras-Rebollar , noted at 169 Wash.App. 1001, 2012 WL 2499369, at *10.

¶16 Our Supreme Court held that relying on the April 2010 mandate to determine the timeliness of the supplemental petition was error for the same reasons explained in Skylstad . Contreras-Rebollar , 177 Wash.2d at 565, 303 P.3d 1062. Specifically, Contreras-Rebollar's appeal from his resentencing was still pending, and the fact that his sentence had been reversed meant that there was no final judgment until the litigation on the merits of his sentence was concluded. Id.

2. Sorenson's PRP is Time-Barred

¶17 In support of his assertion that his petition is timely, Sorenson cites to, without discussion, Skylstad , 160 Wash.2d 944, 162 P.3d 413 and Contreras-Rebollar , 177 Wash.2d 563, 303 P.3d 1062. However, unlike in Skylstad and Contreras-Rebollar , Sorenson's sentence was not reversed. Also, unlike in Skylstad and Contreras-Rebollar , Sorenson's sentence was not being appealed when he filed his PRP. In fact, when Sorenson filed his PRP, no appeal was pending. In his direct appeal, Sorenson challenged his convictions and asked the appellate court to remand to correct what Sorenson called "scrivener's errors" in his judgment and...

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