Personal Restraint Petition Of: John A. Richardson, Iii
Opinion
Filed Washington State Court of Appeals Division Two
June 1, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of No. 56216-2-II JOHN ARTHUR RICHARDSON, III, UNPUBLISHED OPINION Petitioner.
MAXA, J. – John Richardson, III, seeks relief from personal restraint imposed following
his 2012 convictions for first degree premeditated murder (count I) and second degree unlawful
possession of a firearm (count II). In this, his third personal restraint petition (PRP), Richardson
argues that (1) he is entitled to be resentenced because his offender score contained an attempted
possession of a controlled substance conviction invalidated by State v. Blake, 197 Wn.2d 170,
195, 481 P.3d 521 (2021), (2) the trial court erred in not considering an exceptional sentence
below the standard range based on his youthfulness, (3) his indefinite term of community
custody is invalid, (4) the State did not present sufficient evidence as to count II, and (5) his
conviction for count II is collaterally estopped by his conviction for count I.
We grant Richardson’s PRP in part regarding the first claim and remand to the trial court
for resentencing, but we dismiss the remainder of his PRP as time barred. No. 56216-2-II
FACTS
In 2008, the State charged Richardson with counts I and II for acts he committed when he
was 23 years old. Count I was tried to a jury and count II was tried to the court in a bifurcated
trial. Richardson was found guilty on both counts.
Richardson was sentenced using an offender score of 10, including a prior conviction for
attempted possession of a controlled substance. The trial court imposed a high-end standard
range sentence of 548 months, plus a consecutive 60-month firearm sentencing enhancement.
ANALYSIS
A. LEGAL PRINCIPLES
RCW 10.73.090(1) provides that a petitioner generally must file a PRP within one year
after a trial court judgment becomes final. However, for the time bar to apply, the judgment and
sentence must be valid on its face. RCW 10.73.090(1).
In addition, RCW 10.73.100 lists six exceptions to the one-year time limit. Under RCW
10.73.100(6), the time bar does not apply if the PRP 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), cert. denied, 141 S. Ct. 1754 (2021).
B. OFFENDER SCORE
Richardson argues that he is entitled to be resentenced because his offender score used at
sentencing included a conviction for attempted possession of a controlled substance. We agree.
Initially, even though Richardson’s PRP was filed more than a year after his judgment
and sentence became final, the PRP was not time-barred. In Blake, the Supreme Court held that
Washington’s strict liability drug possession statute, RCW 69.50.4013(1), violated state and
2 No. 56216-2-II
federal due process clauses and therefore was void. 197 Wn.2d at 195. Under Blake,
Richardson’s judgment and sentence is invalid on its face because “a conviction based on an
unconstitutional statute cannot be considered in calculating the offender score.” State v.
LaBounty, 17 Wn. App. 2d 576, 581-82, 487 P.3d 221 (2021).1
The State concedes that the prior conviction for attempted possession of controlled
substances must be removed from Richardson’s offender score under Blake. But the State argues
that Richardson is not entitled to be resentenced because the removal of that conviction would
only reduce his offender score from 10 to 9, leaving him with the same standard sentence range.
However, while the reduction in the offender score will not change Richardson’s standard
sentence range, it may influence the trial court’s decision to impose a sentence at the high end of
that range. Therefore, we grant Richardson’s petition in part and remand to the trial court for
resentencing with a corrected offender score.
C. UNTIMELY OTHER CLAIMS
Regarding Richardson’s remaining claims, his judgment and sentence became final on
December 1, 2011 when this court issued the mandate of his direct appeal. RCW
10.73.090(3)(b). He did not file his PRP until September 13, 2021, more than one year later.
Unless he shows that one of the exceptions contained in RCW 10.73.100 applies or that his
judgment and sentence is facially invalid, the remainder of his petition is time-barred. In re
Pers. Restraint of Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002).
1 Because this claim involves facial invalidity of the judgment and sentence, this PRP is not a mixed petition even though the remaining claims are untimely. See In re Pers. Restraint of Stenson, 150 Wn.2d 207, 220, 76 P.3d 241 (2003).
3 No. 56216-2-II
Richardson argues that his petition falls within the exception contained in RCW
10.73.100(6). He claims that State v. Houston-Sconiers 188 Wn.2d 1, 20-21, 391 P.3d 409
(2017), which requires that the trial court consider exceptional sentences below the standard
range or consider non-consecutive firearm sentencing enhancements when sentencing a juvenile
defendant, is a significant change in the law that should be applied to him retroactively. Ali, 196
Wn.2d at 233.
Houston-Sconiers is a significant change in the law. Id. But because Richardson was not
a juvenile when he committed his crimes, that case is not material to Richardson’s sentence and
does not exempt his PRP from the time bar under RCW 10.73.100(6). In re Pers. Restraint of
Young, ___ Wn. App. 2d ___, 508 P.3d 687, 690 (2022). And Richardson fails to show that the
remainder of his petition falls within any of the other RCW 10.73.100 exceptions to the time bar
and fails to identify any invalidity on the face of his judgment and sentence. Therefore, the
remainder of his petition must be dismissed as untimely.2
CONCLUSION
We grant Richardson’s PRP in part and remand to the trial court for resentencing with a
corrected offender score, but we dismiss the remainder of his PRP as time-barred.
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