In The Matter Of The Personal Restraint Of Steven Joseph Clark

• Decision Date: 08 April 2010
• Docket Number: No. 81522-4.,81522-4.
• Citation: 230 P.3d 156,168 Wash.2d 581
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Steven Joseph CLARK, Petitioner.

168 Wash.2d 581

230 P.3d 156

In the Matter of the Personal Restraint of Steven Joseph CLARK, Petitioner.

No. 81522-4.

Supreme Court of Washington,

En Banc.

Argued Sept. 17, 2009.

Decided April 8, 2010.

Ann Marie Summers, King County Prosecutor's Office Seattle, WA, for Petitioner.

Jeffrey Erwin Ellis, Ellis Holmes & Witchley, P.L.L.C., Seattle, WA, for Respondent.

FAIRHURST, J.

¶ 1 Steven Joseph Clark seeks to withdraw his 1998 guilty plea to two counts of second degree robbery. Clark asserts that his plea was involuntary because the plea agreement erroneously informed him that he would serve one year of community placement. Community placement was not statutorily authorized for his crimes. He seeks to avoid the one year time limit for bringing a personal restraint petition (PRP) by arguing that his judgment and sentence is invalid on its face. The Court of Appeals agreed with Clark and remanded to the trial court to give Clark the opportunity to elect to withdraw his plea. We disagree and reverse the Court of Appeals.

I. STATEMENT OF THE CASE

¶ 2 On January 20, 1998, Clark pleaded guilty to two counts of second degree robbery for robbing two banks. As part of his plea, the State dismissed a third count of second degree robbery. The plea agreement also included a minimum of one year of community placement.¹ On February 27, 1998, the trial court entered the judgment and sentence. The trial court sentenced Clark to 25 months' imprisonment for each count, to be served concurrently. The trial court also signed an appendix regarding community placement.²

¶ 3 On March 6, 1998, the Department of Corrections wrote the trial court a letter asking for clarification after discovering that Clark did not meet the statutory criteria for community placement. On March 12, 1998, upon the State's motion, the trial court entered an order modifying the judgment and sentence by vacating the community placement appendix.

¶ 4 On May 14, 1999, the trial court entered a judgment and sentence against Clark on an unrelated charge of delivery of a controlled substance. Clark was sentenced to imprisonment of 12 months and 1 day, to be served concurrently to his second degree robbery sentences. The trial court did not impose community placement. At some point in 1999, Clark was released from prison.

¶ 5 On October 5 and 26, 1999, while out of prison, Clark again robbed two banks. A jury convicted him of two counts of second degree robbery. The trial court found Clark to be a persistent offender and sentenced Clark to life imprisonment without the possibility of parole.

¶ 6 In 2007, Clark filed a PRP with the Court of Appeals, Division One, alleging that his 1998 guilty plea to the two counts of robbery was involuntary because he was incorrectly informed he would be sentenced to community placement. He alleged his PRP was not time-barred because the judgment and sentence was invalid on its face. In an unpublished opinion, the Court of Appeals agreed with Clark and remanded to the trial court so he could choose whether to withdraw his plea. In re Pers. Restraint of Clark, noted at 143 Wash.App. 1048, 2008 WL 836158. We granted the State's motion for discretionary review.

II. ISSUE

¶ 7 Is Clark's PRP timely?

III. ANALYSIS

¶ 8 There are two separate issues raised by Clark's PRP. The first is whether the PRP is time-barred. The second is whether Clark's plea was involuntary. Because we hold that Clark's PRP is untimely, we do not reach the second issue.

¶ 9 The State contends that Clark's PRP was untimely because he filed his PRP more than one year after judgment became final. Clark contends that he is not bound by the one year statute of limitations because the judgment and sentence is invalid on its face.

¶ 10 RCW 10.73.090(1) provides, “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 judgment becomes final on the date it is filed with the clerk of the trial court if no appeal is filed. RCW 10.73.090(3)(a). Here, Clark's judgment and sentence became final in 1998 and his PRP was filed in 2007. Therefore, Clark is well outside the one year time limit prescribed in RCW 10.73.090(1). However, the statutory time limit does not apply if the judgment and sentence is not valid on its face. Id.

¶ 11 A judgment and sentence is not valid on its face when the judgment and sentence, without further elaboration, evidences an error. In re Pers. Restraint of Thompson, 141 Wash.2d 712, 718, 10 P.3d 380 (2000). The documents of a plea agreement can inform the inquiry as to whether the judgment and sentence is invalid on its face. In re Pers. Restraint of Hemenway, 147 Wash.2d 529, 532, 55 P.3d 615 (2002); State v. Ammons, 105 Wash.2d 175, 189, 713 P.2d 719, 718 P.2d 796 (1986). “The question is not, however, whether the plea documents are facially invalid, but rather whether the judgment and sentence is invalid on its face.” Hemenway, 147 Wash.2d at 533, 55 P.3d 615.

¶ 12 Here, Clark's judgment and sentence is not invalid on its face. Clark asserts that the judgment and sentence is invalid on its face because it contains a term of community custody that is not authorized by statute. However, the judgment and sentence, as originally written, did not include a term of community placement.³ Additionally, after being amended, the judgment and sentence does not even make reference to community placement. Therefore, the judgment and sentence is consistent with former RCW 9.94A.120(9) (1997), the community placement statute in effect in 1998. Consequently, the judgment and sentence is not invalid on its face.

¶ 13 Clark argues that examination of his guilty plea reveals that he was improperly informed about the consequences of his plea, thus making the judgment and sentence invalid on its face. However, we have already disposed of this argument in Hemenway. Hemenway pleaded guilty to first degree child molestation. 147 Wash.2d at 530, 55 P.3d 615. The plea form did not inform him about community placement but did state that the judge might place him on community supervision. Id. At sentencing, the court imposed a sentence of confinement and 24 months in community placement. Id. at 531, 55 P.3d 615. The judgment and sentence provided that Hemenway serve a term of community placement “ ‘for the period of time provided by law.’ ” Id. (quoting J. & Sentence at 4.7). More than one year later, Hemenway filed a PRP, claiming his guilty plea was involuntary because he was not informed that his sentence included mandatory community placement. Id. We held that Hemenway's judgment and sentence was valid on its face because it correctly reflected the law, and thus Hemenway's PRP was untimely. Id. at 532, 55 P.3d 615. We then rejected Hemenway's argument that because the plea form failed to inform him about the community placement, his plea was invalid on its face. Id. at 533, 55 P.3d 615. We reasoned that with regard to the timeliness of a PRP, the question was not whether the plea agreement was invalid on its face, but rather whether the judgment and sentence was invalid on its face. Id. We held that Hemenway's PRP was untimely.

¶ 14 Here, Clark's judgment and sentence correctly reflects the law. Even though Clark's plea agreement may be flawed, those flaws do not render his judgment and sentence facially invalid. Therefore, any problem in his plea agreement is insufficient to overcome the one year time limit of RCW 10.73.090(1).

¶ 15 Clark argues that the March 12, 1998, order amending his judgment and sentence is void because he was denied the due process rights of notice, an opportunity to be heard, and the right to counsel. However, even if the order were void, it would merely resurrect the original judgment and sentence, which is not facially invalid. Additionally, in order to determine whether the amending order is void, we must go beyond the face of the judgment and sentence. There is no evidence of constitutional infirmity from the face of the judgment and sentence or the order amending it. Clark has provided an affidavit, some declarations, and other documentary evidence suggesting that his judgment and sentence was amended without a hearing. However, if Clark must resort to external documents in the hope of rendering his judgment and sentence invalid, then the judgment and sentence cannot be invalid on its face. Because this inquiry would require us to go beyond the face of the judgment and sentence, it cannot overcome the one year time limit imposed by RCW 10.73.090(1).⁴

IV. CONCLUSION

¶ 16 Clark had one year from when his judgment and sentence became final to bring a PRP. Instead, Clark's PRP was brought nine years after his judgment and sentence was entered. On its face, the judgment and sentence is consistent with the law. Therefore, Clark has failed to show that the one year time limit does not apply to him. Accordingly, we reverse the Court of Appeals and dismiss Clark's PRP as untimely.

WE CONCUR: MADSEN, C.J., OWENS, C. JOHNSON, ALEXANDER, J.M. JOHNSON, STEPHENS, CHAMBERS, JJ.

SANDERS, J. (dissenting).

¶ 17 Steven Clark's original judgment and sentence is invalid on its face, and the ex parte order modifying the judgment and sentence is also invalid on its face. As a result, Clark's personal restraint petition is timely. Because the majority's analysis to the contrary mischaracterizes the original judgment and sentence and the modification order, I dissent.

¶ 18 Under RCW 10.73.090(1) a prisoner is barred from filing a personal restraint petition to collaterally attack a judgment and sentence more than one year after the judgment becomes final unless it is invalid on its face. Here, Clark's original judgment and sentence is facially invalid because it contains a community placement provision that is not authorized for Clark's offense. See f...