Personal Restraint Petition Of Bradley Eric Jensen

• Court: Court of Appeals of Washington
• Decided: December 12, 2022
• Docket: 84201-3
• Status: Unpublished

Opinion

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

In the Matter of the Personal Restraint of No. 84201-3-I

BRADLEY ERIC JENSEN, UNPUBLISHED OPINION

Petitioner.

PER CURIAM — Bradley Jensen was convicted for taking a motor vehicle

without permission in the second degree, committed while on community custody,

and for possession of a controlled substance. His offender score for the motor

vehicle conviction was calculated at 26, with a standard range of 22 to 29 months.

The superior court sentenced him to 29 months in prison. Jensen did not appeal,

so his judgment and sentence became final when the superior court clerk filed it in

January 2020. RCW 10.73.090(3)(a); In re Pers. Restraint of Skylstad, 160 Wn.2d

944, 948, 162 P.3d 413 (2007) (“If a defendant chooses not to appeal (or his time to

appeal expires), judgment is final when the trial court clerk files the judgment.”).

In May 2022, Jensen filed a motion in superior court to be resentenced,

challenging his sentence on the basis that the offender score erroneously included

two prior convictions for possession of a controlled substance, which are now

Citations and pin cites are based on the Westlaw online version of the cited material No. 84201-3-I/2

invalid under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). 1 The superior

court transferred the motion to this court for consideration as a personal restraint

petition pursuant to CrR 7.8(c)(2).

A personal restraint petition that challenges a judgment and sentence must

be filed within one year after the judgment and sentence becomes final.

RCW 10.73.090(1). A petitioner bears the burden of showing that his or her petition

is timely. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 833, 226 P.3d 208

(2010). Thus, Jensen’s petition is time barred unless he can show that (1) his

judgment and sentence is facially invalid or was not entered by a court of

competent jurisdiction, or (2) an exception under RCW 10.73.100 applies.

Jensen argues that his petition is exempt from the time bar because his

judgment and sentence is facially invalid, as removing the two possession

convictions invalidated by Blake from his criminal history reduces his offender score

from 26 to 24. But at a score of 24, Jensen’s standard range remains 22 to 29

months. See RCW 9.94A.510 (highest standard range reached at offender score

of 9 or more). Because the superior court had authority to sentence Jensen within

that range, the judgment and sentence is not facially invalid. See In re Pers.

Restraint of Coats, 173 Wn.2d 123, 136, 267 P.3d 324 (2011); In re Pers. Restraint

of Toledo-Sotelo, 176 Wn.2d 759, 768-70, 297 P.3d 51 (2013); Order Granting

Rev. & Reversing, In re Pers. Restraint of Richardson, No. 101043-5, at 2 (Wash.

Nov. 14, 2022) (a judgment and sentence is not facially invalid when offender score

1 In Blake, the Supreme Court held that Former RCW 69.50.4013(1), the statute criminalizing simple drug possession, violates state and federal due process clauses and, therefore, is unconstitutional. 197 Wn.2d at 195.

2 No. 84201-3-I/3

is 9 or more and the standard range remains the same after removing drug

possession conviction from offender score).

Jensen’s petition is time barred, so it must be dismissed. RAP 16.8.1(b).

FOR THE COURT