Personal Restraint Petition Of John Robert Anderson

• Court: Court of Appeals of Washington
• Decided: July 28, 2015
• Docket: 46826-3
• Status: Unpublished

Opinion

FILED 11FT OF APP,_ALS ir 2 JUL 28 RM 8: 27 i1T 111T1-

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In re the Matter of the Personal Restraint No. 46826 -3 -II Petition of

JOHN ROBERT ANDERSON,

Petitioner.

UNPUBLISHED OPINION

JOHANSON, C. J. — John Anderson seeks relief from personal restraint imposed following

his convictions of third degree assault (domestic violence) and tampering with a witness ( domestic

violence). He claims that his restraint is unlawful because his judgment and sentence includes a

term of confinement combined with his term of community custody that exceeds the statutory

maximum for his offense. We agree, grant the petition in part, and remand for correction of

petitioner' s judgment and sentence.

We do not address Anderson' s claims that the sentencing court wrongly imposed domestic

violence perpetrator' s treatment and substance abuse treatment because Anderson filed his petition No. 46826 -3 -II

more than one year after his judgment and sentence became final and no exception to the one- year

time limit set out in RCW 10. 73. 100 applies.' We deny these claims as untimely.

In In re Personal Restraint of Coats, 173 Wn.2d 123, 140- 41, 267 P. 3d 324 ( 2011), our

Supreme Court explained that a petitioner making a facial invalidity claim may not use that claim

to raise otherwise untimely issues related to the fairness of his trial: " A claim that the judgment is

not valid on its face may not be used to make an end run around the time limit and a personal

restraint petition." Id. at 141.

A claim of facial invalidity is not, however, subject to the one- year time limit on collateral

attacks. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 351, 5 P. 3d 1.240 ( 2000). Therefore,

we consider petitioner' s challenge to the length of his sentence.

A term of confinement combined with a term of community custody that exceeds the

statutory maximum for an offense is an illegal sentence. State v. Boyd, 174 Wn.2d 470, 473, 275

P. 3d 321 ( 2012). In the context of personal restraint petitions, showing that the sentencing court

imposed a sentence in excess of its statutory authority demonstrates facial invalidity. Coats, 173

Wn.2d at 136. It is the trial court' s duty to correct such a sentence if a defendant was sentenced 52; after RCW 9. 94A. 701( 9) became effective on July 26, 2009. See Laws of 2009, ch. 375, §

Petitioner' s judgment and sentence was final on February 23, 2013. RCW 10. 73. 090( 3)( a). When petitioner filed his. CrR 7. 8 motion in superior court on September 26, 2014, more than one year had elapsed. The superior court transferred petitioner' s motion to this court for consideration as a personal restraint petition.

2 On the 26, 2009 date, the RCW 9. 94A. 701 subsection was number ( 8). A July effective relevant

subsequent amendment in 2010 changed subsection (8) to subsection (9), which was the subsection number in effect when petitioner was sentenced. 2 No. 46826 -3 -II

Boyd, 174 Wn.2d at 473. As noted above, petitioner was sentenced in 2013 so RCW 9. 94A.701( 9)

applies here.

The sole remedy for a sentencing error that renders a judgment and sentence facially invalid

is correction of the judgment and sentence. In re Pers. Restraint of Shively, 180 Wn.2d 28, 30,

320 P. 3d 1107 ( 2014). Accordingly, we grant this petition in part and remand for correction of

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 04.0,

it is so ordered.

1 JHANSON, C. J. We concur:

SUTTON, J.