Johnson, Matter of
| Decision Date | 03 April 1997 |
| Docket Number | No. 64284-2,64284-2 |
| Citation | 131 Wn.2d 558,933 P.2d 1019 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Personal Restraint of John JOHNSON, Petitioner. |
Nielsen & Acosta, Eric Broman and Kathryn Allison Russell, Seattle, for petitioner.
John J. Johnson, pro se.
Jim Krider, Snohomish County Prosecutor, S. Aaron Fine, Deputy, Everett, for respondent.
Petitioner John Johnson challenges for the second time by personal restraint petition (PRP) the calculation of the offender score used for his 1985 sentence for felony murder. After his first PRP was denied, we decided a 1994 case that overruled prior law and set forth the proper way to calculate Johnson's offender score. The State argues RCW 10.73.140 bars Johnson from bringing
this second PRP to challenge the calculation of his offender score and, thus, his sentence. We hold Johnson's present PRP is not barred under the facts of this case because the 1994 decision marked a material change in the law and constituted good grounds for bringing the present petition. RAP 16.4(d). We grant Johnson's petition, and remand this case to the trial court for resentencing.
1. Is Johnson's second PRP challenging the calculation of his offender score barred by either RCW 10.73.140 or RAP 16.4(d)?
2. If Johnson's PRP is not barred, has Johnson established the necessary grounds under RAP 16.4 for granting the PRP?
Johnson and two confederates were convicted of first degree felony murder in Snohomish County in 1985. Based on Johnson's criminal history, the sentencing court assigned him an offender score of 2, yielding a standard range of 261 to 347 months. At the sentencing hearing, the court stated its intent to sentence Johnson at the low-end of the standard range in order to be consistent with the low-end sentences the court had already imposed on Johnson's two codefendants. The trial court therefore imposed a sentence of 261 months' confinement, the lowest sentence under the standard range for the offense using 2 as the offender score.
In calculating Johnson's offender score, the trial court addressed two prior convictions, both in California. Johnson was convicted of possession of methadone in 1973, and placed on probation. He was later convicted in 1974 of possession of heroin. Upon his second conviction, his earlier probation was revoked and he served sentences for Johnson filed his first PRP in 1989 to protest, inter alia, the use of 2 as his offender score. Citing RCW 9.94A.360(6)(c) in his first PRP, Johnson argued his offender score should have been 1 because he had served his prior sentences concurrently. 1 With 1 as his offender score, the standard sentence range would be reduced to 250-333 months. Johnson contended the sentencing court, consistent with its statement during the sentencing hearing, would have sentenced him at the low-end of the standard range, a sentence of 250 months.
both offenses concurrently. The sentencing court in Washington, however, counted each offense separately for purposes of Johnson's criminal history, leading to an offender score of 2; for Johnson's crime, with this offender score, his standard sentence range was 261-347 months. Johnson sought direct review of his conviction, which was affirmed. In the direct appeal, he did not challenge the calculation of his offender score.
The Court of Appeals rejected Johnson's claim, noting the two possession crimes for which Johnson was convicted were not committed and tried at one time. On the authority of State v. Chavez, 52 Wash.App. 796, 799, 764 P.2d 659 (1988) (), the Court of Appeals concluded the commission of the second offense resulted in revocation of the probation imposed for the first offense. As a result, according to the Court of Appeals, Johnson's California sentences overlapped and he served the sentence for the second offense concurrently with the balance of the sentence imposed for the first. Johnson did not petition this Court for review of the Court of Appeals decision.
We specifically overruled Chavez five years after the denial of Johnson's initial PRP. In In re Personal Restraint As a result of the decision in Sietz, Johnson filed a motion on December 5, 1994 under CrR 7.8(a) to correct what he called a clerical mistake in his sentence. Judge Richard Thorpe of the Snohomish County Superior Court responded by letter on April 4, 1995, denying the motion, and advising Johnson that his only avenue for relief was a PRP, citing RAP 16.5(a). Johnson then filed his second PRP on May 17, 1995, in which he again argued his offender score should have been 1, this time citing Sietz. Prior to argument, the Court of Appeals certified the case to this Court, and we accepted certification in accordance with RCW 2.06.030 and RAP 4.3.
of Sietz, 124 Wash.2d 645, 650, 880 P.2d 34 (1994), we concluded for offenses committed before July 1, 1986, a revoked probation or parole merges with another offense served concurrently, establishing an "adult conviction served concurrently" for purposes of RCW 9.94A.360(8) in calculating an offender score. Under this new rule, Johnson's offender score should have been 1 instead of 2.
We are asked in this case to determine if Johnson's PRP is barred by the limits on successive PRPs contained in court rule and statute. The State argues RCW 10.73.140 applies to bar Johnson's second PRP. The State also contends the statute is substantive and therefore supersedes any contrary court rule. Abad v. Cozza, 128 Wash.2d 575, 593 n. 2, 911 P.2d 376 (1996); State v. W.W., 76 Wash.App. 754, 758, 887 P.2d 914 (1995). Johnson argues RAP 16.4(d) applies and does not bar his second PRP. He argues the statute is procedural and is superseded by the court rule. RAP 1.1(b); RCW 2.04.200; Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 821, 792 P.2d 500 (1990) ().
Both RAP 16.4(d) and RCW 10.73.140, albeit by different language, limit successive personal restraint petitions. RCW 10.73.140 states:
If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition.... If upon review, the court of appeals finds that the petitioner has previously raised the same grounds for review, or that the petitioner has failed to show good cause why the ground was not raised earlier, the court of appeals shall dismiss the petition on its own motion without requiring the state to respond to the petition.
The State argues this statute bars Johnson's second PRP because it raises "the same grounds for review." Supplemental Br. of Resp't at 3. We have previously defined a "ground" for purposes of a PRP: "By 'ground' we mean simply a distinct legal basis for granting relief .... the prior denial must have rested on an adjudication of the merits of the ground presented in the subsequent application." In re Personal Restraint of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986). Johnson is once again seeking a reduction in his sentence on the ground that his offender score was miscalculated.
RAP 16.4(d) provides: "No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown." We have previously defined "similar relief." In In re Personal Restraint of Haverty, 101 Wash.2d 498, 503, 681 P.2d 835 (1984), we adopted the United States Supreme Court's definition of "similar relief" found in a statute containing language very similar to RAP 16.4(d). Citing Sanders v. United States, 373 U.S. 1, 15, 17, 83 S.Ct. 1068, 1077, 1078, 10 L.Ed.2d 148 (1963), we held the phrase "similar relief" relates to the grounds for the relief, rather than the type of relief sought. See also In re Personal Restraint of Jeffries, 114 Wash.2d 485, 488-89, 789 P.2d 731 (1990). Johnson asserts We decline to read either the statute or the court rule as superseding the other. Where a statute and court rule can be interpreted harmoniously, we do so. State v. Thomas, 121 Wash.2d 504, 511, 851 P.2d 673 (1993); Ryan, 103 Wash.2d at 178, 691 P.2d 197. The statute conflicts with the rule in the Court of Appeals, but not in the Supreme Court. This is because RCW 10.73.140 divests the Court of Appeals, but not the Supreme Court, of jurisdiction to decide PRPs presenting the "same grounds for review."
the Court may consider his second PRP because Sietz is a material change in the law and, as such, establishes the good cause the rule requires.
The Legislature has authority to determine the jurisdiction of the Court of Appeals. When the people in 1968 approved the 50th Amendment to the Washington Constitution (), the Legislature established the Court of Appeals in 1969. RCW 2.06.010. Article IV, section 30(2) delineated the jurisdiction of the Court of Appeals: "The jurisdiction of the court of appeals shall be as provided by statute or by rule authorized by statute." In RCW 2.06.030, the Legislature declared, with enumerated exceptions, the Court of Appeals has "exclusive appellate jurisdiction in all cases." Id. In 1971, the Legislature authorized the Court of Appeals to grant writs of habeas corpus. RCW 7.36.040. We have held this statute to be "a constitutional and fully effective grant of original habeas corpus jurisdiction to the Court of Appeals." Holt v. Morris, 84 Wash.2d 841, 846 n. 1, 529 P.2d 1081 (1974). Article IV, section 4 gives the Supreme Court original jurisdiction of habeas corpus proceedings. Thus, as we held in Toliver...
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