In re West

• Decision Date: 28 April 2005
• Docket Number: No. 75310-5.,75310-5.
• Citation: 110 P.3d 1122,154 Wash.2d 204
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Brenda Louise WEST, Petitioner.

110 P.3d 1122

154 Wash.2d 204

In the Matter of the Personal Restraint of Brenda Louise WEST, Petitioner.

No. 75310-5.

Supreme Court of Washington, En Banc.

Argued January 20, 2005.

Decided April 28, 2005.

Darrel Lance Lahtinen, Seattle, for Petitioner.

Kathleen Proctor, Pierce County Prosecuting Attorneys Office, Tacoma, for Respondent.

BRIDGE, J.

¶ 1 In 1996, Brenda Louise West held up a Motel 6 clerk for $120. In exchange for a reduction of the charge from first degree robbery down to first degree theft, West agreed to serve an exceptional 10-year sentence. This eliminated the possibility that a conviction would result in her third strike. As part of her plea bargain, West also signed a waiver in which she agreed to serve the full 10-year sentence and requested that the Department of Corrections (Department) not make any calculation or application of earned early release time. The sentencing judge made a handwritten notation on the judgment and sentence explaining that West stipulated to 10 years flat time with no earned early release. The Department reads this notation to prohibit it from applying any earned early release credit to West's sentence.

¶ 2 West filed a personal restraint petition alleging that the handwritten notation renders the judgment and sentence facially invalid because it is not within the superior court's power to prohibit the accumulation of earned early release time. The Court of Appeals dismissed the petition, concluding that the notation merely memorialized West's stipulation to serve flat time, but did not actually prohibit the application of early release time. We disagree.

¶ 3 The handwritten notation was made by the trial court and became part of the judgment and sentence, thus carrying the imprimatur of the trial court. The Department considers itself bound by the trial court's writing and reads it to prohibit the application of early release time. Yet only the Department has the authority to grant or deny earned early release time, and thus the handwritten notation renders West's judgment and sentence facially invalid. We reverse the Court of Appeals, grant the petition, and remand to the sentencing court for deletion of the notation from West's judgment and sentence.

Facts and Procedural History

¶ 4 On July 21, 1996 Brenda West held up a clerk of a Motel 6 with a handgun, stealing $120 from the hotel's cash drawer. West was initially charged with one count of robbery in the first degree. If convicted of first degree robbery, West would have faced a life sentence without the possibility of parole as a persistent offender. West entered into a plea agreement with the State in which the State agreed to reduce the charge to theft in the first degree in exchange for West's guilty plea, her stipulation to an exceptional sentence of 10 years, and her waiver of any right to earned early release time.

¶ 5 West signed a written waiver of her earned early release time that acknowledged that only the Department has the authority to determine whether early release time has been earned. The waiver stated, in part:

I hereby waive my right to have any ... earned credit applied to my sentence in this case and stipulate that I shall serve ten years, flat time, in the Department of Corrections.... I request that the Department of Corrections not make any determination, calculation, or application of earned early release time in regards to my sentence so that the State may receive the benefit of its agreement with me. I do this freely and voluntarily as part of my plea agreement with the State.... I make this waiver to induce the State to file an Amended Information charging me with Theft in the First Degree rather than risk being convicted of a "most serious offense" and sentenced to life without possibility of parole.

Def.'s Waiver of Earned Early Release Time as Condition of Plea Agreement at 1-2 (emphasis added). On January 13, 1997, West pleaded guilty to theft in the first degree. The court sentenced West to 10 years, the statutory maximum for first degree theft. The judge also entered a handwritten notation on the judgment and sentence which reads, "defendant stipulates to flat time—no earned early release." J. and Sentence at 5.

¶ 6 West filed this petition more than one year after her judgment and sentence became final. The chief judge of Division Two of the Court of Appeals dismissed West's petition as untimely, concluding that the notation on West's judgment and sentence merely reflected her stipulation and it did not usurp the Department's authority:

West's agreement not to seek earned early release time does not bind the Department, which remains free to award or to withhold earned early release time as it sees fit. The trial court, therefore, did not exceed its sentencing authority in referring to this stipulation on the judgment and sentence.

Order Dismissing Pet. at 3. West filed a motion for discretionary review, which this court granted.

Analysis

¶ 7 RCW 10.73.090 establishes a one-year time limit for collateral attack on a judgment and sentence. However, the one-year time limit does not apply if a judgment and sentence is invalid on its face. RCW 10.73.090. Even where a judgment and sentence is invalid, to justify collateral relief a nonconstitutional error must also constitute "`a "fundamental defect which inherently results in a complete miscarriage of justice."'" See In re Pers. Restraint of Thompson, 141 Wash.2d 712, 719, 10 P.3d 380 (2000)

(quoting In re Pers. Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) (quoting In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990))).

¶ 8 The Court of Appeals concluded that the handwritten notation on West's judgment and sentence simply reflected West's waiver of earned early release time and mere acknowledgment of West's stipulation would not bind the Department or exceed the trial court's sentencing authority. Order Dismissing Pet. at 3. However, in State v. Phelps, 113 Wash.App. 347, 57 P.3d 624 (2002), the same division of the Court of Appeals reached a different conclusion. In that case, the trial court included on the judgment and sentence a handwritten notation stating "`[t]he defendant agrees to extend the statute of limitation for refiling Count I for a period of 7 years from this Judgment and Sentence.'" Id. at 352, 57 P.3d 624 (quoting Clerk's Papers (CP) at 36). The Phelps court held that regardless of whether the trial court intended the notation to be a part of the sentencing order or merely an acknowledgment of the agreement, including the notation on the judgment and sentence gave it the imprimatur of the trial court. Id. at 357, 57 P.3d 624. We believe the Phelps court's conclusion is the correct one. In West's case, the Department reports that it is bound by the "plain language of the judgment and sentence" which "expressly states `defendant stipulates to flat time—no earned early release.'" Resp. of the Dep't of Corr. at 3 (quoting the judgment and sentence notation). The plain language of the notation does not limit its application and nothing suggests that the notation carries less than the full weight of the trial court's sentencing authority. See Phelps, 113 Wash.App. at 356-57,

57 P.3d 624. Therefore, we consider the notation to be part of the sentencing order.

¶ 9 The dissent cites to State v. Pharris, 120 Wash.App. 661, 86 P.3d 815 (2004) to support its conclusion that the Department can simply overlook the trial court's notation in this case. In Pharris, the defendant pleaded guilty to assault and unlawful imprisonment based on an incident in which he beat, stabbed, and burned his girlfriend over a period of seven hours. Id. at 666, 86 P.3d 815. On the same day, he pleaded guilty to drug charges. Id. The trial judge entered findings to support an exceptional sentence in the assault/unlawful imprisonment case and ordered that the concurrent standard range sentences for assault and unlawful imprisonment would be served consecutively to the standard range drug sentence. See RCW 9.94A.535 and 9.94A.589(a), (b). On the judgment and sentence in the drug case, the trial judge included a handwritten notation that read, "`[t]he sentence herein shall run consecutively with the sentence in [the assault conviction] but concurrently to any other felony cause not referred to in this Judgment.'" Pharris, 120 Wash.App. at 667,86 P.3d 815 (quoting CP at 25). Pharris argued that this notation on the drug judgment and sentence created an unsupported exceptional sentence in the drug case. The Court of Appeals disagreed, holding that the notation did not impose an exceptional sentence in the drug case, but instead was "nothing but a cross reference to the exceptional sentence in the assault case." Id.¹ In doing so, the Court of Appeals determined what the trial court meant by its handwritten notation.

¶ 10 In Phelps, as in this case, the key issue was not what the trial court meant by its notation, but what weight the notation carried. In contrast, in Pharris, the key question involved the meaning of the notation itself. Moreover, in Pharris the trial court's notation referenced another judgment and sentence, which independently carried the authority of the trial court. In Phelps and in this case, the trial courts did not reference another valid judgment and sentence, but instead recited agreements between the prosecution and the defense that did not otherwise carry the authority of the trial court. See Phelps, 113 Wash.App. at 356-57,

57 P.3d 624; Waiver at 1-2.

¶ 11 The key question here, like in Phelps, is not what the notation means, but what weight it carries. The Department considers itself bound by the trial court's writing and reads it to prohibit the application of early release time. Again, we agree with the Phelps court's conclusion that regardless of whether the trial court intended the notation to be a part of the sentencing order, including it in the...