In the Matter of the Personal Restraint of: Guadalupe Martinez-Cervantes

• Court: Court of Appeals of Washington
• Decided: August 12, 2021
• Docket: 38065-3
• Status: Unpublished

Opinion

FILED AUGUST 12, 2021 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Personal Restraint of: ) No. 38065-3-III ) ) GUADALUPE MARTINEZ-CERVANTES, ) ) UNPUBLISHED OPINION Petitioner. ) )

FEARING, J. — Guadalupe Martinez-Cervantes seeks relief from personal

restraint imposed for his 2019 Franklin County convictions in two separate cases for

felony violation of a no contact order, possessing a stolen motor vehicle, attempting to

elude, and unlawful possession of a controlled substance. Martinez-Cervantes requests

vacation of the count of unlawful possession of a controlled substance and resentencing

on his remaining convictions, with recalculation of his offender score to exclude points

derived from his conviction for unlawful possession of a controlled substance. The State

concedes the need for vacation of the single count and resentencing on the remaining

counts. This court accepts the State’s concession. No. 38065-3-III PRP of Martinez-Cervantes

In State v. Blake, 197 Wn.2d 170, 182-83, 186, 481 P.3d 521 (2021), the Supreme

Court held that Washington’s strict liability drug possession statute, former RCW

69.50.4013(1), violated state and federal due process clauses and was therefore void. The

Supreme Court did not specify whether its ruling applied to cases already final. But,

established precedent counsels that Blake applies to such cases.

In a personal restraint petition, this court cannot grant relief when the petition is

filed more than one year after the judgment became final unless the sentence is invalid on

its face, the trial court lacked competent jurisdiction, or the petition is based solely on one

or more of the exceptions set forth in RCW 10.73.100(1)-(6). Guadalupe Martinez-

Cervantes’ petition fits within the facial invalidity exception to RCW 10.73.090(1).

For a claim to fit within the facial invalidity exception, the alleged error must be

apparent on the face of the documents signed as a part of the sentence and any plea

agreement. In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240

(2000). Because the former possession statute is void, because a defendant cannot be

convicted based on a void statute, and because a void conviction cannot be included in a

defendant’s offender score, this court need not look any further than the face of

Guadalupe Martinez-Cervantes’ judgments and sentences to determine that his offender

score is erroneous and that the current conviction for unlawful possession of a controlled

substance is also void. State v. Carnahan, 130 Wn. App. 159, 164, 122 P.3d 187 (2005);

State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986).

2 No. 38065-3-III PRP of Martinez-Cervantes

Accordingly, Martinez-Cervantes’ judgments and sentences are facially invalid and his

petition is exempt from the time-bar. We may review the judgments and sentences on

their merits. RCW 10.73.090(1).

In the personal restraint context, this court will only grant relief for constitutional

errors resulting in actual and substantial prejudice. In re Personal Restraint of Cook, 114

Wn.2d 802, 813, 792 P.2d 506 (1990). Because a person cannot be punished for

violating a void statute and because a sentence that is based upon an incorrect offender

score is a fundamental defect that inherently results in a miscarriage of justice, Guadalupe

Martinez-Cervantes also suffers actual and substantial prejudice. In re Personal

Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618 (2002). Therefore, this court

grants Martinez-Cervantes’ petition for relief and remands the case to the trial court for

resentencing in accordance with Blake. RAP 16.4(a).

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________ Fearing, J.

WE CONCUR:

_________________________________ ________________________________ Pennell, C.J. Lawrence-Berrey, J.