State v. Tellvik

• Decision Date: 21 December 2021
• Docket Number: 37596-0-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. CLARK ALLEN TELLVIK, Appellant.

STATE OF WASHINGTON, Respondent,
v.
CLARK ALLEN TELLVIK, Appellant.

No. 37596-0-III

Court of Appeals of Washington, Division 3

December 21, 2021

UNPUBLISHED OPINION

Pennell, C.J.

Clark Allen Tellvik appeals a trial court order regarding his motion for relief from judgment under CrR 7.8. He also appeals the terms of his amended judgment and sentence. As the parties agree, this matter must be remanded for the trial court to assess Mr. Tellvik's CrR 7.8 motion and for resentencing.

FACTS

In 2016, a jury convicted Mr. Tellvik of first degree burglary, possession of a stolen vehicle, possession with intent to deliver a controlled substance, making or having burglary tools, possession of a stolen firearm, and second degree unlawful possession of a firearm. The jury also found firearm enhancements on the convictions for burglary, possession of a stolen vehicle, and possession with intent to deliver a controlled substance. Mr. Tellvik appealed his convictions, which this court affirmed except for a

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conviction for possession with intent to deliver a controlled substance. State v. Tellvik, No. 34525-4-III, slip op. at 8 (Wash.Ct.App. Jun. 14, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/345254_unp.pdf, rev'd in part sub nom. State v. Peck, 194 Wn.2d 148, 161, 449 P.3d 235 (2019). The Supreme Court's decision in its consolidated review of Tellvik and Peck became final on issuance of a mandate on July 31, 2020.

On February 14, 2020, Mr. Tellvik filed a motion for relief of judgment under CrR 7.8. The motion challenged Mr. Tellvik's conviction. It was based on arguments not previously raised on appeal.

Shortly after Mr. Tellvik filed the CrR 7.8 motion, but before issuance of the Supreme Court's mandate, the trial court held a hearing to address errors in the original judgment and sentence. The errors had been brought to the court's attention by the Washington State Department of Corrections. As a result of the hearing, the trial court issued an amended judgment and sentence. The court declined to address the merits of Mr. Tellvik's CrR 7.8 motion, explaining it lacked jurisdiction because the Supreme Court had not yet mandated Mr. Tellvik's appeal back to the trial court. The court then denied Mr. Tellvik's CrR 7.8 motion and directed it to be transferred it to this court for consideration as a personal restraint petition. The petition was later remanded back to the

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trial court as its transfer order failed to meet the requirements of...