IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 84797-0-I
DION EARL JOHNSON, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
BIRK, J. — Dion Johnson seeks relief from personal restraint resulting from
his 2021 convictions following his guilty plea to attempted assault in the second
degree and false swearing. Johnson argues that he is entitled to be resentenced
because his offender score at sentencing was incorrectly calculated as 21 when it
should have been 12—due primarily to the erroneous double-scoring of certain of
Johnson’s prior convictions—thus rendering his judgment and sentence facially
invalid. He also claims that he received ineffective assistance of counsel and that
his request for resentencing qualifies for an exception to the one year time bar
based on State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). We conclude that
the miscalculated offender score does not render Johnson’s judgment and
sentence facially invalid and that the untimeliness of the ineffective assistance of
counsel claim renders the petition mixed. Accordingly, we dismiss the petition.
I
In November 2020, Johnson pleaded guilty to amended charges of
attempted assault in the second degree with a domestic violence designation and
false swearing. The charges arose from an incident in which Johnson intentionally No. 84797-0-I/2
struck his former intimate partner with his car and fled the scene, then falsely
testified under oath that he did not know who she was. Johnson’s criminal history
included 12 adult felony convictions, including one for possession of a controlled
substance, as well as three juvenile court felony adjudications. The parties agreed
that Johnson’s offender score on the attempted second degree assault was 21 and
that his standard range was 47 to 60 months of confinement.
Approximately three months later, our Supreme Court held in Blake that
former RCW 69.50.4013(1), the statute criminalizing simple drug possession, was
unconstitutional. 197 Wn.2d at 195. As a result, Johnson’s 2002 conviction for
possession of a controlled substance became constitutionally invalid.
A sentencing hearing took place on March 12, 2021. The State sought a
high-end standard range sentence of 60 months in prison in light of the “gravity of
the facts” as well as Johnson’s “significant domestic violence history.” Johnson
requested a prison-based Drug Offender Sentencing Alternative (DOSA), but he
did not argue that the court should impose a shorter sentence. Counsel for
Johnson acknowledged that Blake might affect Johnson’s “robust” offender score
but conceded that it was a “moot point” given that Johnson was “maxed out” for
sentencing purposes. The State argued that Johnson’s DOSA request should be
denied because the evidence did not support Johnson’s claim that his conduct was
rooted in substance use. Based on an offender score of 21, the court denied
Johnson’s request for a DOSA and imposed a high-end standard range sentence
of 60 months.
2 No. 84797-0-I/3
Johnson did not appeal, and his judgment and sentence became final when
it was entered on March 12, 2021. Johnson then filed a timely personal restraint
petition claiming that his counsel rendered constitutionally inadequate assistance
during the plea process, which this court dismissed as frivolous.
On July 27, 2022, Johnson’s felony conviction for possession of a controlled
substance was vacated pursuant to Blake. On November 8, 2022, Johnson filed
a CrR 7.8 motion seeking resentencing on the ground that miscalculation of his
offender score rendered his judgment and sentence facially invalid. Johnson
argued that his offender score of 21 included the incorrect double scoring of 7 prior
adult domestic violence felony convictions1 as well as one prior conviction
invalidated by Blake. The State agreed that Johnson’s offender score was
incorrectly calculated and that his correct offender score should have been 12, but
argued that the motion was time-barred because his judgment and sentence was
facially valid despite the error.2
The superior court concluded that Johnson’s motion was time-barred and
that he had not made a substantial showing of entitlement to relief. Accordingly,
the superior court transferred the matter to this court for consideration as a
personal restraint petition.
1 See RCW 9.94A.525(21)(a) (providing that the domestic violence doubling
provision applies only to offenses for which domestic violence was pleaded and proved after August 1, 2011). 2 In its supplemental briefing, the State asserts that Johnson’s correct
offender score is 13, not 12. Johnson’s judgment and sentence is facially valid based on either of these scores.
3 No. 84797-0-I/4
II
Under RAP 16.4, we will grant appropriate relief to a petitioner if the
petitioner is under unlawful restraint. In re Pers. Restraint of Davis, 152 Wn.2d
647, 670, 101 P.3d 1 (2004). To be entitled to relief, the petitioner must show
either a constitutional error that resulted in actual and substantial prejudice, or a
nonconstitutional error that constituted a fundamental defect that inherently results
in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802,
811, 792 P.2d 506 (1990).
In general, a personal restraint petition that challenges a judgment and
sentence must be filed within one year after the judgment and sentence becomes
final “if the judgment and sentence is valid on its face and was rendered by a court
of competent jurisdiction.” RCW 10.73.090(1). The one year time limit does not
apply to claims falling within one of the seven exceptions identified in RCW
10.73.100. As the petitioner, Johnson bears the burden of proving that his petition
is timely. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 831, 226 P.3d 208
(2010). Johnson filed the motion underlying this petition more than one year after
his judgment and sentence became final, so it is untimely under RCW 10.73.090(1)
unless he can show that the judgment and sentence is facially invalid or was not
entered by a court of competent jurisdiction, or that an exception under RCW
10.73.100 applies.
III
Johnson’s petition presents three claims for relief. First, Johnson asserts
that his judgment and sentence is facially invalid, and that resentencing is required,
4 No. 84797-0-I/5
because sentencing was based on a miscalculated offender score.3 Second,
Johnson argues that defense counsel’s failure to correct the trial court’s
understanding of his offender score was ineffective assistance of counsel. Third,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of No. 84797-0-I
DION EARL JOHNSON, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
BIRK, J. — Dion Johnson seeks relief from personal restraint resulting from
his 2021 convictions following his guilty plea to attempted assault in the second
degree and false swearing. Johnson argues that he is entitled to be resentenced
because his offender score at sentencing was incorrectly calculated as 21 when it
should have been 12—due primarily to the erroneous double-scoring of certain of
Johnson’s prior convictions—thus rendering his judgment and sentence facially
invalid. He also claims that he received ineffective assistance of counsel and that
his request for resentencing qualifies for an exception to the one year time bar
based on State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). We conclude that
the miscalculated offender score does not render Johnson’s judgment and
sentence facially invalid and that the untimeliness of the ineffective assistance of
counsel claim renders the petition mixed. Accordingly, we dismiss the petition.
I
In November 2020, Johnson pleaded guilty to amended charges of
attempted assault in the second degree with a domestic violence designation and
false swearing. The charges arose from an incident in which Johnson intentionally No. 84797-0-I/2
struck his former intimate partner with his car and fled the scene, then falsely
testified under oath that he did not know who she was. Johnson’s criminal history
included 12 adult felony convictions, including one for possession of a controlled
substance, as well as three juvenile court felony adjudications. The parties agreed
that Johnson’s offender score on the attempted second degree assault was 21 and
that his standard range was 47 to 60 months of confinement.
Approximately three months later, our Supreme Court held in Blake that
former RCW 69.50.4013(1), the statute criminalizing simple drug possession, was
unconstitutional. 197 Wn.2d at 195. As a result, Johnson’s 2002 conviction for
possession of a controlled substance became constitutionally invalid.
A sentencing hearing took place on March 12, 2021. The State sought a
high-end standard range sentence of 60 months in prison in light of the “gravity of
the facts” as well as Johnson’s “significant domestic violence history.” Johnson
requested a prison-based Drug Offender Sentencing Alternative (DOSA), but he
did not argue that the court should impose a shorter sentence. Counsel for
Johnson acknowledged that Blake might affect Johnson’s “robust” offender score
but conceded that it was a “moot point” given that Johnson was “maxed out” for
sentencing purposes. The State argued that Johnson’s DOSA request should be
denied because the evidence did not support Johnson’s claim that his conduct was
rooted in substance use. Based on an offender score of 21, the court denied
Johnson’s request for a DOSA and imposed a high-end standard range sentence
of 60 months.
2 No. 84797-0-I/3
Johnson did not appeal, and his judgment and sentence became final when
it was entered on March 12, 2021. Johnson then filed a timely personal restraint
petition claiming that his counsel rendered constitutionally inadequate assistance
during the plea process, which this court dismissed as frivolous.
On July 27, 2022, Johnson’s felony conviction for possession of a controlled
substance was vacated pursuant to Blake. On November 8, 2022, Johnson filed
a CrR 7.8 motion seeking resentencing on the ground that miscalculation of his
offender score rendered his judgment and sentence facially invalid. Johnson
argued that his offender score of 21 included the incorrect double scoring of 7 prior
adult domestic violence felony convictions1 as well as one prior conviction
invalidated by Blake. The State agreed that Johnson’s offender score was
incorrectly calculated and that his correct offender score should have been 12, but
argued that the motion was time-barred because his judgment and sentence was
facially valid despite the error.2
The superior court concluded that Johnson’s motion was time-barred and
that he had not made a substantial showing of entitlement to relief. Accordingly,
the superior court transferred the matter to this court for consideration as a
personal restraint petition.
1 See RCW 9.94A.525(21)(a) (providing that the domestic violence doubling
provision applies only to offenses for which domestic violence was pleaded and proved after August 1, 2011). 2 In its supplemental briefing, the State asserts that Johnson’s correct
offender score is 13, not 12. Johnson’s judgment and sentence is facially valid based on either of these scores.
3 No. 84797-0-I/4
II
Under RAP 16.4, we will grant appropriate relief to a petitioner if the
petitioner is under unlawful restraint. In re Pers. Restraint of Davis, 152 Wn.2d
647, 670, 101 P.3d 1 (2004). To be entitled to relief, the petitioner must show
either a constitutional error that resulted in actual and substantial prejudice, or a
nonconstitutional error that constituted a fundamental defect that inherently results
in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802,
811, 792 P.2d 506 (1990).
In general, a personal restraint petition that challenges a judgment and
sentence must be filed within one year after the judgment and sentence becomes
final “if the judgment and sentence is valid on its face and was rendered by a court
of competent jurisdiction.” RCW 10.73.090(1). The one year time limit does not
apply to claims falling within one of the seven exceptions identified in RCW
10.73.100. As the petitioner, Johnson bears the burden of proving that his petition
is timely. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 831, 226 P.3d 208
(2010). Johnson filed the motion underlying this petition more than one year after
his judgment and sentence became final, so it is untimely under RCW 10.73.090(1)
unless he can show that the judgment and sentence is facially invalid or was not
entered by a court of competent jurisdiction, or that an exception under RCW
10.73.100 applies.
III
Johnson’s petition presents three claims for relief. First, Johnson asserts
that his judgment and sentence is facially invalid, and that resentencing is required,
4 No. 84797-0-I/5
because sentencing was based on a miscalculated offender score.3 Second,
Johnson argues that defense counsel’s failure to correct the trial court’s
understanding of his offender score was ineffective assistance of counsel. Third,
Johnson claims that the Blake decision represents a significant change in the law
that is material to his sentence, rendering his petition exempt from the time bar
pursuant to RCW 10.73.100(7).
As an initial matter, the State argues that even if one of Johnson’s claims
were timely, the petition should be summarily dismissed as a “mixed” petition. In
a personal restraint petition filed after the one year time-bar, “[w]here one or more
of the grounds asserted for relief fall within the exceptions in RCW 10.73.100 and
one or more do not, then the petition is a ‘mixed petition’ that must be dismissed.”
In re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003) (quoting
In re Pers. Restraint of Hankerson, 149 Wn.2d at 697, 702-03, 72 P.3d 703 (2003);
In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000)).
Here, Johnson’s ineffective assistance of counsel claim does not fall within
any of RCW 10.73.100’s exceptions to the one year time bar, so that claim must
be dismissed as untimely. See Stoudmire, 141 Wn.2d at 349 Under the mixed
petition rule, other claims in Johnson’s petition that depend on an exception under
RCW 10.73.100 must also be dismissed. “[I]f a personal restraint petition claiming
multiple grounds for relief is filed after the one-year period of RCW 10.73.090
expires, and the court determines that at least one of the claims is time barred, the
3 Johnson further asserts that because of the miscalculation in his offender
score, the sentencing court denied his request for a DOSA.
5 No. 84797-0-I/6
petition must be dismissed. Under such circumstances the court will not analyze
every claim that is raised in order to determine or advise which claims are time
barred and which are not, nor will it decide claims under RCW 10.73.100 that are
not time barred.” Hankerson, 149 Wn.2d at 702-03. Accordingly, Johnson’s claim
that Blake renders his petition timely under RCW 10.73.100(7) must also be
dismissed without further consideration.
But the mixed petition rule does not preclude consideration of claims that
allege that the judgment and sentence is facially invalid. See Stoudmire, 141
Wn.2d at 351 (all claims contained in a “mixed” petition other than those that
challenge the validity of the judgment and sentence on its face must be dismissed);
In re Pers. Restraint of Williams, 200 Wn.2d 622, 632, 520 P.3d 933 (2022) (noting
that “[s]uch claims implicate RCW 10.73.090 and are thus not subject to the
restrictive language in RCW 10.73.100.”). Thus, we will consider Johnson’s claim
that his judgment and sentence is facially invalid under RCW 10.73.090.
IV
Johnson does not challenge the trial court’s decision to impose a term of
confinement at the top end of the standard range. Rather, he contends that his
judgment and sentence is facially invalid because the “grossly miscalculated”
offender score likely dissuaded the trial court from fairly considering his DOSA
request. We disagree.
“Not every error will make a judgment facially invalid.” In re Pers. Restraint
of Toledo-Sotelo, 176 Wn.2d 759, 767, 297 P.3d 51 (2013). “[T]he general rule is
that a judgment and sentence is not valid on its face if the trial judge actually
6 No. 84797-0-I/7
exercised authority (statutory or otherwise) it did not have.” In re Pers. Restraint
of Scott, 173 Wn.2d 911, 916, 271 P.3d 218 (2012). “However, we have never
found a judgment invalid merely because the error invited the court to exceed its
authority when the court did not in fact exceed its authority.” In re Pers. Restraint
of Coats, 173 Wn.2d 123, 136, 267 P.3d 324 (2011). A judgment and sentence is
facially invalid only if the trial court imposes a sentence that was not authorized
under the Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA). Toledo-
Sotelo, 176 Wn.2d at 767.
An incorrect offender score does not render a judgment and sentence
facially invalid if the trial court accurately determined the standard sentencing
range and the sentence actually imposed is within the correct SRA-mandated
standard range. Toledo-Sotelo, 176 Wn.2d at 767. Our Supreme Court’s recent
opinion in In re Personal Restraint of Richardson, 200 Wn.2d 845, 525 P.3d 939
(2022) is instructive. In Richardson, the superior court imposed a prison term
within the standard range. Id. at 846. Richardson subsequently filed a personal
restraint petition challenging his sentence on the ground that his offender score
included a prior conviction invalidated by Blake. Id. at 847. The Supreme Court
concluded that Richardson's judgment and sentence was not facially invalid
because
[r]emoving from the offender score the prior conviction for attempted possession of a controlled substance reduces the score from 10 to 9, but at a score of 9 Richardson's standard range remains 471 to 608 months. See RCW 9.94A.510 (highest standard range reached at offender score of 9 or more). The superior court imposed a sentence within that range and therefore the sentence was authorized. In this circumstance, the judgment and sentence is not facially invalid.
7 No. 84797-0-I/8
Richardson, 200 Wn.2d at 847 (citing Coats, 173 Wn.2d at 136; Toledo-Sotelo,
176 Wn.2d at 768-70).
Johnson asserts that facial invalidity exists where the judgment and
sentence contains a substantial defect that affects the petitioner’s rights. He
argues that Coats, Richardson and Toledo-Sotelo were incorrectly decided and
urges us to hold that a petitioner need not show the trial court exceeded its
authority to demonstrate facial invalidity. But this court is bound to follow Supreme
Court precedent. State v. Kelly, 25 Wn. App. 2d 879, 888, 526 P.3d 39 (2023).
Applying these principles, we conclude that the trial court’s decision to deny
Johnson’s request for a DOSA did not render Johnson’s judgment and sentence
facially invalid despite the miscalculated offender score. The DOSA program
authorizes trial judges to sentence eligible drug users to reduced confinement time
in exchange for their participation in substance use disorder treatment and
increased supervision to assist in recovery from addiction. State v. Grayson, 154
Wn.2d 333, 337, 111 P.3d 1183 (2005); see RCW 9.94A.660. A defendant is not
entitled to a DOSA but “is entitled to ask the trial court to consider such a sentence
and to have the alternative actually considered.” Grayson, 154 Wn.2d at 342.
When a defendant requests a sentencing alternative authorized by statute, the
court's categorical failure to consider the request is an abuse of discretion and
reversible error. Id.
Here, the record shows that the court meaningfully considered Johnson’s
DOSA request and chose to adopt the State’s recommendation to impose a high-
end standard range sentence instead. As in Toledo-Sotelo and Richardson,
8 No. 84797-0-I/9
Johnson’s correct offender score remained above a 9, and so his standard range
did not change. Johnson’s sentence was plainly authorized by the SRA, so his
judgment and sentence is not facially invalid for the purpose of exempting his
petition from the time bar under RCW 10.73.090. Moreover, Johnson has failed to
demonstrate prejudice because there is no indication that the court would have
granted Johnson’s DOSA request based on his corrected offender score. At
sentencing, the State did not focus on Johnson’s numerical offender score and
instead emphasized Johnson’s extensive domestic violence history and the lack
of evidence supporting Johnson’s claim that his crimes were influenced by
substance use.
Johnson relies on In re Personal Restraint of Goodwin, 146 Wn.2d 861,
876, 50 P.3d 618 (2002) for the proposition that a miscalculated offender score is
a fundamental defect that results in a complete miscarriage of justice requiring
resentencing. But there, unlike here, the miscalculated offender score led to a
sentence “in excess of what [was] statutorily permitted for his crimes” as a matter
of law. Id. at 875-76. Goodwin does not compel a different outcome.
Johnson also argues that he made a per se substantial showing entitling
him to resentencing pursuant to recent amendments to CrR 7.8(c)(2) added at the
recommendation of the defense bar to address Blake.4 See Order Adopting
Recommended Changes to CrR 3.1 and CrR 7.8, No. 25700-A-1397 (Wash. Sup.
4 The amendment provides that a defendant makes a “substantial showing
that they are entitled to relief” when they are “serving a sentence that was calculated under RCW 9.94A.525 using a prior or current conviction based on such a statute.” CrR 7.8(c)(2)(i)(B).
9 No. 84797-0-I/10
Ct. Dec. 6, 2021). But CrR 7.8(c)(2), which addresses the procedure by which
relief may be obtained, requires the trial court to transfer a motion for relief to this
court “unless the court determines that the motion is not barred by RCW
10.73.090.” (Emphasis added.) Here, the superior court properly determined that
Johnson’s motion was barred by RCW 10.73.090. And the amendment does not
modify the standard for obtaining relief on the merits under CrR 7.8(b).
In sum, Johnson has not established that his judgment and sentence is
facially invalid, and his remaining claims are subject to the mixed petition rule.
Accordingly, the petition is dismissed.5
WE CONCUR:
5 We need not address the successive nature of Johnson's petition because
it is untimely. RCW 10.73.140; In re Pers. Restraint of Bell, 187 Wn.2d 558, 564, 387 P.3d 719 (2017) (this court will summarily dismiss a successive petition that does not overcome the one year time bar).