Personal Restraint Petition Of: Michael Dashawn Stevenson, Jr

• Court: Court of Appeals of Washington
• Decided: January 29, 2024
• Docket: 85907-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of: No. 85907-2-I

MICHAEL DASHAWN STEVENSON DIVISION ONE JR, UNPUBLISHED OPINION Petitioner.

MANN, J. — Michael Stevenson Jr. seeks review of his motion to vacate judgment

and sentence under CrR 7.8, which was transferred to this court as a personal restraint

petition (PRP). CrR 7.8(c)(2). Stevenson argues that his judgment and sentence is

facially invalid because the trial court miscalculated his offender score. Because

Stevenson does not establish grounds for relief, we deny his PRP.

I

In 2018, pursuant to a plea agreement, Stevenson pleaded guilty to two counts of

robbery in the first degree, with a firearm enhancement on count 2. As part of his plea,

Stevenson stipulated to a criminal history that included 2014 convictions for robbery and

assault and agreed that he had an offender score of “8.” He requested a low-end

sentence of 168 months. No. 85907-2-I/2

The sentencing court sentenced Stevenson to 186 months. In February 2023,

Stevenson filed a motion to vacate his 2018 judgment and sentence under CrR 7.8.

II

A petitioner may request relief through a PRP when he or she is under an

unlawful restraint. RAP 16.4(a)-(c). “A personal restraint petitioner must prove either a

(1) constitutional error that results in actual and substantial prejudice or (2)

nonconstitutional error that ‘constitutes a fundamental defect which inherently results in

a complete miscarriage of justice.’” In re Pers. Restraint of Monschke, 160 Wn. App.

479, 488, 251 P.2d 884 (2010) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647,

672, 101 P.3d 1 (2004)). The petitioner must prove prejudice by a preponderance of

the evidence. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004).

“The petitioner must support the petition with facts or evidence and may not rely solely

on conclusory allegations.” Monschke, 160 Wn. App. at 488; RAP 16.7(a)(2)(i).

In evaluating PRPs, we can (1) dismiss the petition if the petitioner fails to make

a prima facie showing of constitutional or nonconstitutional error; (2) remand for a full

hearing if the petitioner makes a prima facie showing but the merits of the contentions

cannot be determined solely from the record; or (3) grant the petition without further

hearing if the petitioner has proven actual prejudice or a miscarriage of justice. In re

Pers. Restraint of Stockwell, 160 Wn. App. 172, 176-77, 248 P.3d 576 (2011).

A PRP is time barred if it is filed more than one year after the judgment becomes

final. RCW 10.73.090(1). However, an untimely PRP may be considered if the

judgment and sentence was not valid on its face or if the petition is based on one or

more of the statutory exceptions to the time limit listed in RCW 10.73.100. A judgment

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and sentence is facially invalid if the trial court exercised power that it did not have,

including by imposing a sentence not authorized by law. In re Pers. Restraint of Flippo,

187 Wn.2d 106, 110, 385 P.3d 128 (2016). This includes a sentence that is excessive

based on a miscalculated offender score. In re Pers. Restraint of Goodwin, 146 Wn.2d

861, 873, 50 P.3d 618 (2002).

The inquiry into whether a sentence is invalid on its face is not confined to the

four corners of the judgment and sentence. In re Pers. Restraint of Coats, 173 Wn.2d

123, 138, 267 P.3d 324 (2011). Rather, the Washington Supreme Court has endorsed

consideration of certain documents in addition to the judgment and sentence. Coats,

173 Wn.2d at 139-40. When the judgment and sentence is based on a guilty plea, the

face of the judgment and sentence includes those documents signed as part of the plea

agreement. Coats, 173 Wn.2d at 138-40.

III

Stevenson argues that his judgment and sentence is facially invalid because the

trial court miscalculated his offender score by not considering his prior convictions for

robbery and assault to be convictions of the same criminal conduct. 1 We disagree.

A defendant may raise a legal error with his or her sentence for the first time on

appeal. State v. Johnson, 180 Wn. App. 92, 99, 320 P.3d 197 (2014). However, a

defendant waives the right to challenge the State’s depiction of his criminal history on

appeal if the defense “not only fails to specifically object but agrees” with that depiction.

State v. Bergstrom, 162 Wn.2d 87, 94, 169 P.3d 816 (2007).

1 To constitute the same criminal conduct, two or more criminal offenses must (1) have the same

objective intent, (2) occur at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a).

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In Goodwin, the Supreme Court held that “in general a defendant cannot waive a

challenge to a miscalculated offender score.” 146 Wn.2d at 874. However, “waiver can

be found where the alleged error involves an agreement to facts, later disputed, or

where the alleged error involves a matter of trial court discretion.” Goodwin, 146 Wn.2d

at 874.

“Application of the same criminal conduct statute involves both factual

determinations and the exercise of discretion,” and is not a purely legal error. State v.

Nitsch, 100 Wn. App. 512, 523, 997 P.2d 1000 (2000); see also In re Pers. Restraint of

Shale, 160 Wn.2d 489, 496, 158 P.3d 588 (2007) (plurality opinion) (offender waived

right to argue same criminal conduct on collateral attack when he did not raise the issue

at sentencing), overruled on other grounds by State v. Knight, 162 Wn.2d 806, 174 P.3d

1167 (2008).

As part of his plea, both Stevenson and his lawyer signed a declaration of

criminal history that scored two points each for 2014 crimes of assault in the second

degree and robbery in the second degree. And in Stevenson’s memorandum of

sentencing, he agreed that he had an offender score of “8.” Because Stevenson did not

challenge his offender score at sentencing, Stevenson has waived this argument.

Shale, 160 Wn.2d at 496.

But, even if Stevenson had properly preserved this challenge, it is without merit.

Stevenson’s 2014 conviction was also reached as part of a plea agreement. 2

Significantly, as part of his plea, Stevenson agreed that the robbery and assault were

2 Stevenson attached factual information on the 2014 crimes to his motion. As did the State.

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separate acts. Thus, they were not considered the same criminal conduct by the 2014

sentencing judge.

Accordingly, Stevenson’s judgment and sentence is valid on its face. Thus, this

claim of error is subject to the one-year time limit for collateral attack. RCW

10.73.090(1); see In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d 759, 769-70, 297

P.3d 51 (2013) (holding where the judgment and sentence was valid on its face, petition

is time barred).

We deny Stevenson’s PRP. 3

WE CONCUR:

3 The State alternatively argues that Stevenson’s PRP is successive. Stevenson has filed two

prior petitions which were dismissed. See No. 52465-1-II and No. 54996-4-II. Because Stevenson’s petition is untimely, we need not assess whether it is successive. See In re Pers. Restraint of Bell, 187 Wn.2d 558, 562, 387 P.3d 719 (2017).

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