State v. Morris

• Docket Number: 57401-2-II
• Decision Date: 26 December 2023
• Parties: STATE OF WASHINGTON, Respondent, v. JOHNNY MORRIS, III, Appellant.
• Court: Washington Court of Appeals

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STATE OF WASHINGTON, Respondent,
v.
JOHNNY MORRIS, III, Appellant.

No. 57401-2-II

Court of Appeals of Washington, Division 2

December 26, 2023

UNPUBLISHED OPINION

MAXA, J.

Johnny Morris appeals the trial court's order correcting the judgment and adjusting his sentence following resentencing pursuant to State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021) over 10 years after his first degree manslaughter conviction. Morris argues that the trial court erred at resentencing by failing to address his request for an exceptional sentence below the standard range based on his youth as a mitigating factor and by imposing a $100 DNA fee. Morris also asserts additional claims regarding his resentencing in a statement of additional grounds (SAG).

Removing an unlawful possession of a controlled substance (UPCS) conviction from Morris's offender score did not affect the standard range sentence. The State argues that the trial court did not have authority to resentence Morris because the inclusion of the UPCS conviction in his offender score did not render his judgment and sentence facially invalid, and therefore his request for resentencing was time barred under RCW 10.73.090.

We hold that the trial court did not have the authority to resentence Morris because his request for resentencing was untimely. Therefore, we need not address whether the trial court erred because the only relief Morris requests is a remand for a new resentencing. That

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resentencing would be de novo, meaning that any relief requested on remand would be time barred. Accordingly, in the interest of judicial economy we reject Morris's challenge and affirm his sentence.

FACTS

In May 2009, Morris fired at least nine shots from a handgun at another vehicle, resulting in the driver's death. The State originally charged Morris with two counts of first degree murder, first degree assault, and unlawful possession of a firearm. Morris was 24 years old.

Morris eventually entered into a plea agreement in which he plead guilty to first degree manslaughter with a firearm sentencing enhancement. Morris's offender score was calculated as 9.5, which included 0.5 points for an UPCS conviction when he was a juvenile. The standard sentencing range was 210-280 months plus a 60 month enhancement. At sentencing in May 2011, the trial court imposed the parties' joint recommendation of 230 months plus 60 months for the firearm enhancement.

In April 2018, Morris filed a personal restraint petition with this court, arguing that he was entitled to a resentencing in which the trial court could consider a mitigated sentence based on his youthfulness under State v. O'Dell, 183 Wn.2d 680, 358. P.3d 359 (2015). This court dismissed Morris' motion as time-barred because he did not show that (1) the judgment and sentence was facially invalid, and (2) the Supreme Court had held in In re Personal Restraint of Light-Roth, 191 Wn.2d 328, 330, 422 P.3d 444 (2018) that O'Dell was not a significant change in the law for purposes of RCW 10.73.100(6). Order Dismissing Petition, In re Pers. Restraint of Morris, No. 52351-5-II, (Wash.Ct.App. Oct. 28, 2021).

In September 2022, Morris filed a CrR 7.8 motion for resentencing under Blake because his offender score included a UPCS conviction. Morris argued that his motion was timely

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because the reference to the now void UPCS conviction rendered his judgment and sentence invalid on its face. On the merits, Morris requested an exceptional sentence below the standard range based on his mental health problems under RCW 9.94A.535(1)(e), his rehabilitation while in prison, and his youth under O'Dell.

There is no indication in the record that the State opposed Morris's CrR 7.8 motion based on untimeliness or that the State objected to resentencing.

The trial court conducted a resentencing hearing in which both the State and Morris presented argument regarding the length of Morris's sentence, and the mother of the victim's children also spoke. In its oral ruling, the court noted that removing half a point from his offender score left Morris with the same standard range. The court briefly addressed Morris's mental health argument but did not mention Morris's youth. The court then stated, "So I'll maintain the present sentence of 230 months plus a 60-month enhancement for a total of 290 months." Rep. of Proc. (RP) (Sept. 16, 2022) at 18. The court also stated that it was waiving all fees and costs except for the crime victim penalty assessment and the DNA collection fee.

The court then stated,

I would also point out that Mr. Morris had a motion to withdraw his plea or a motion to get relief that was filed Ultimately it went up to the Court of Appeals, and the argument was that O'Dell was a significant change in the law that applied retroactively. The Court of Appeals addressed that and pointed out that the Light-Roth decision held O'Dell is not a significant change, and, therefore, the Court of Appeals dismissed his petition as being time barred, and then Blake allows the reopening of

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