In Re The Personal Restraint Petition Of Dennis Carlos Oya

• Court: Court of Appeals of Washington
• Decided: November 6, 2018
• Docket: 51355-2
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

November 6, 2018

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the No. 51355-2-II Personal Restraint Petition of (Consolidated with 51422-2-II, 51569-5-II, 51663-2-II) DENNIS OYA

UNPUBLISHED OPINION

SUTTON, J. — Dennis Oya seeks relief from personal restraint resulting from his 2009

plea of guilty to first degree assault and first degree unlawful possession of a firearm. In a series

of four petitions,1 he argues that (1) his offender score of 8 is incorrect and should be 7, (2) the

error in his offender score rendered his plea involuntary, (3) the trial court erred in imposing a term

of community custody of 24 to 48 months, and he repeats the argument (4) that the offender score

is incorrect.

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

1 Three of the petitions were filed in the trial court as motions to modify or correct his judgment and sentence and were transferred by that court to us under CrR 7.8(c)(2) to be considered as personal restraint petitions. A Commissioner of this court consolidated the four petitions into the anchor case, No. 51355-2-II and all four petitions address the same superior court cause No. 09-1- 00534-8. Consol. Nos. 51355-2-II / 51422-2-II / 51569-5-II / 51663-2-II

judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.

Oya’s judgment and sentence became final on August 28, 2009, when the trial court entered

it. RCW 10.73.090(3)(a). He did not file his petitions until starting January 10, 2018, more than

one year later. Unless he shows that one of the exceptions in RCW 10.73.100 applies or shows

that his judgment and sentence is facially invalid, his petitions would be time-barred. In re Pers.

Restraint of Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002).

Oya does not argue that any of the exceptions in RCW 10.73.100 apply. He argues that his

judgment and sentence is facially invalid because its offender score of 8 is not supported by the

criminal history it lists. The State concedes that the judgment and sentence is facially invalid and

so it is exempt from the one-year time-bar. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866,

50 P.3d 618 (2002). The State also concedes that Oya is entitled to be resentenced with an offender

score of 7. Goodwin, 146 Wn.2d at 877. We accept the State’s concessions.

Oya next argues that the error in his offender score renders his plea involuntary. But this

claim is time-barred. See In re Pers. Restraint of Clark, 168 Wn.2d 581, 587, 230 P.3d 156 (2010).

And an error in a judgment and sentence does not render a plea involuntary. In re Pers. Restraint

of Coats, 173 Wn.2d 123, 141, 267 P.3d 324 (2011).

Finally, Oya argues that the trial court erred in imposing an indefinite term of community

custody of 24 to 48 months. He argues that at the time of sentencing, former RCW

9.94A.701(1)(b) (2009) had been amended to provide that the term of community custody for a

serious violent offense, such as first degree assault, should be 36 months. The State concedes that

Oya’s judgment and sentence should be corrected to impose a 36-month term of community

custody.

2 Consol. Nos. 51355-2-II / 51422-2-II / 51569-5-II / 51663-2-II

We grant Oya’s petitions as to issues (1), (3), and (4), deny his petitions as to issue (2), and

remand his judgment and sentence for resentencing with a correct offender score and a correct

term of community custody.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

SUTTON, J. We concur:

JOHANSON, P.J.

MELNICK, J.