Personal Restraint Petition Of: Jason Wayne Priebe

• Court: Court of Appeals of Washington
• Decided: January 23, 2023
• Docket: 84280-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE IN THE MATTER OF THE PERSONAL RESTRAINT OF: No. 84280-3-I (consol. with Nos. 84281-1-I, 84282-0-I, JASON WAYNE PRIEBE, 84283-8-I, and 84284-6-I)

Petitioner. UNPUBLISHED OPINION

DWYER, J. — Jason Priebe sought relief from personal restraint imposed

following his 2019 convictions for taking a motor vehicle without permission in the

first degree, unlawful possession of a firearm in the first degree, residential

burglary, multiple counts of possession of a stolen motor vehicle, and multiple

counts of burglary in the second degree. In an unpublished opinion filed on

October 31, 2022, we held that Priebe was entitled to resentencing because the

offender scores relied on at sentencing included three convictions for unlawful

possession of a controlled substance, convictions invalidated by State v. Blake,

197 Wn.2d 170, 195, 481 P.3d 521 (2021).

The State thereafter requested reconsideration of our decision granting

Priebe’s personal restraint petition. The State asserts that Priebe’s judgment and No. 84280-3-I/2

sentence is not facially invalid because the sentence imposed by the superior

court remains authorized after excision of the unconstitutional convictions from

Priebe’s offender score. In light of the November 14, 2022 order issued by our

Supreme Court, we agree. Order, In re Pers. Restraint of Richardson, No.

101043-5 (Wash. Nov. 14, 2022).

Because Priebe’s personal restraint petition was filed more than one year

after his judgment and sentence became final, the petition is time-barred.

Accordingly, we deny relief and dismiss the petition.

I

In 2019, Priebe was convicted of taking a motor vehicle without

permission in the first degree, unlawful possession of a firearm in the first degree,

residential burglary, multiple counts of possession of a stolen motor vehicle, and

multiple counts of burglary in the second degree. Priebe’s controlling range

offender score of 34, calculated at sentencing, included three convictions for

possession of a controlled substance. Our Supreme Court’s subsequent

decision in Blake invalidated all convictions for violations of our State’s strict

liability simple possession statute.

In May 2022, Priebe filed in the Snohomish County Superior Court a

motion to correct his offender score and for resentencing pursuant to Blake. The

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

restraint petition. In an unpublished decision filed on October 31, 2022, we

granted Priebe’s petition for relief and remanded to the superior court for

resentencing.

2 No. 84280-3-I/3

The State thereafter filed a motion for reconsideration, requesting that we

reconsider our unpublished opinion, deny Priebe’s request for relief, and dismiss

his personal restraint petition.

II

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). Pursuant to RCW 10.73.100(6), the time bar does not apply if

the petition is “[1] based on a significant change in the law, [2] which is material

to the conviction or sentence, and [3] sufficient reasons exist to require

retroactive application of the changed legal standard.” In re Pers. Restraint of

Ali, 196 Wn.2d 220, 233, 474 P.3d 507 (2020).

Priebe filed the petition at issue here more than one year after his

judgment and sentence became final. Thus, the petition is untimely pursuant to

RCW 10.73.090(1) unless Priebe can show that (1) the judgment and sentence is

facially invalid or was not entered by a court of competent jurisdiction, or (2) an

exception pursuant to RCW 10.73.100 applies.

The State asserts in its motion for reconsideration that Priebe’s judgment

and sentence is not facially invalid for purposes of exempting his personal

restraint petition from the one-year time limit on collateral review. This is so, the

State contends, because removing Priebe’s prior convictions for possession of a

3 No. 84280-3-I/4

controlled substance from the offender score would not change the applicable

standard range sentence.

A recent order issued by our Supreme Court is dispositive. Order, In re

Pers. Restraint of Richardson, No. 101043-5 (Wash. Nov. 14, 2022). In that

case, Division Two of this court determined that an error in the petitioner’s

offender score, which included a prior controlled substance conviction, was a

facial sentencing defect that exempted the petition from the one-year time limit.

In re Pers. Restraint of Richardson, No. 56216-2-II, slip op. at 2-3, (Wash. Ct.

App. June 1, 2022) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2056216-2-

II%20Unpublished%20Opinion.pdf.

On discretionary review, our Supreme Court held:

Richardson’s judgment and sentence is not facially invalid for purposes of exempting the personal restraint petition from the time limit. Removing 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. 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 at 2.

We adopt this as our position.1

1 Notwithstanding that our Supreme Court’s ruling was set forth in an order of a

department of the court, rather than in an opinion of the court, longstanding authority demonstrates that decisions made by a department of the court are nevertheless precedential. See, e.g., State v. Dickens, 66 Wn.2d 58, 401 P.2d 321 (1965); Green Mountain Sch. Dist. No. 103 v. Durkee, 56 Wn.2d 154, 351 P.2d 525 (1960); Hogland v. Klein, 49 Wn.2d 216, 289 P.2d 1099 (1956); State v. Emmanuel, 49 Wn.2d 109, 298 P.2d 510 (1956).

4 No. 84280-3-I/5

Excising Priebe’s prior convictions for possession of a controlled

substance from the judgment reduces his controlling range offender score from

34 to 31. However, the applicable standard range sentence remains unchanged.

See RCW 9.94A.510. The sentence imposed by the superior court, being within

that range, was authorized. Accordingly, Priebe’s judgment and sentence is not

facially invalid for purposes of exemption from the time limit on collateral review.

We dismiss Priebe’s personal restraint petition, which is time-barred

pursuant to RCW 10.73.090(1).

WE CONCUR: