Personal Restraint Petition Of Nathanial Samy Allen Sylvester

• Court: Court of Appeals of Washington
• Decided: December 6, 2022
• Docket: 56001-1
• Status: Published

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON December 6, 2022

DIVISION II In the Matter of the Personal Restraint of No. 56001-1-II (consolidated with No. 56005-4-II and No. 56011-9-II) NATHANIAL SAMY ALLEN SYLVESTER,

Petitioner. PUBLISHED OPINION

GLASGOW, C.J.—Nathanial Samy Allen Sylvester pointed a gun at his girlfriend, gave a

fake name to avoid arrest, and spat on a correctional officer. In 2019, Sylvester pleaded guilty to

criminal impersonation, custodial assault, third degree assault, and unlawful possession of a

firearm under three separate cause numbers. The parties agreed to recommended sentences that

would impose the bottom of the standard range for each crime, but Sylvester would serve the

sentences consecutively, making the sentence an exceptional one.

Sylvester’s offender score for each charge included 1 point for a prior conviction for

possession of a controlled substance. The prior possession conviction is now void under State v.

Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). More than one year after his judgment and sentences

became final, Sylvester filed three CrR 7.8 motions seeking resentencing using corrected offender

scores. The trial court transferred them to this court as personal restraint petitions (PRPs).

Sylvester argues the trial court should have granted the CrR 7.8 motions instead of

transferring them. The State contends Sylvester’s PRPs are time barred, he cannot establish

prejudice, and, even if we were to remand, he has breached his plea agreement. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 56001-1-II

We hold that Sylvester’s CrR 7.8 motions were not time barred and that he is entitled to

relief. We grant Sylvester’s PRPs and remand for resentencing. On remand, the State may ask the

trial court to first determine whether Sylvester breached his plea agreement.

FACTS

When he pleaded guilty in 2019, Sylvester’s criminal history included two convictions that

were “strike” offenses at the time—second degree robbery and second degree assault. In

September 2019, to avoid risking conviction for a third “strike” offense of second degree assault,

which would result in a mandatory life sentence, Sylvester pleaded guilty to criminal

impersonation, custodial assault, third degree assault, and first degree unlawful possession of a

firearm in a global plea agreement spanning three cause numbers.1

Sylvester’s offender score was 7 points for each charge, and it included 1 point for a prior

conviction for possession of a controlled substance. The standard range for both custodial assault

and third degree assault was 33 to 43 months, and the standard range for first degree unlawful

possession of a firearm was 67 to 89 months. The criminal impersonation charge was an unranked

felony with a standard range of 0 to 365 days. Sylvester stipulated to a plea agreement where the

State agreed to recommend a sentence at the bottom of the standard range for each charge,

including zero days for the impersonation charge. But the sentences would run consecutively, for

1 Second degree robbery is no longer a “‘most serious offense’” that can be used to support a persistent offender sentence. LAWS OF 2019, ch. 187, § 1 (removing second degree robbery from the list of “‘most serious offenses’” in former RCW 9.94A.030(33)(o) (2018)). Now, no conviction for second degree robbery can be used as a basis for finding that a defendant is a persistent offender, regardless of when the defendant committed the offense. RCW 9.94A.647(3).

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

a total exceptional upward sentence of 133 months. The plea agreement stated that if Sylvester

appealed or filed a CrR 7.8 motion, that would constitute a breach of the plea agreement.

During the plea colloquy, the trial court told Sylvester the standard ranges for his charges,

explaining that the ranges were “all based on an offender score of [7],” and the State could seek

an increased sentence if it later discovered additional criminal history. Verbatim Report of

Proceedings (Sept. 18, 2019) at 32. The trial court accepted Sylvester’s guilty plea, finding it

knowing, voluntary, and intelligent.

The trial court followed the plea agreement, imposing low-end sentences but requiring

Sylvester to serve them consecutively. The trial court imposed a total term of confinement of 133

months, an exceptional sentence. The trial court found that Sylvester and the State were “in

agreement as to a recommended sentence above the standard range, and further that it is in the

interest of justice to order an exceptional sentence above the standard range.” Clerk’s Papers (CP)

at 70, 119, 140. Sylvester’s judgment and sentences were entered in September 2019. He did not

appeal.

In February 2021, the Washington Supreme Court held that Washington’s strict liability

drug possession statute was unconstitutional. Blake, 197 Wn.2d at 195. In July 2021, Sylvester

filed three identical CrR 7.8 motions, one for each cause number, arguing that he was entitled to

resentencing under an offender score that did not include the now-void simple possession

conviction. The trial court found that although the CrR 7.8 motions were not barred by the one-

year time limit in RCW 10.73.090, Sylvester had “not made a substantial showing that [he] is

entitled to relief or that an evidentiary hearing will be necessary to resolve the motion on the

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

merits.” CP at 148. The trial court transferred the motions to this court as PRPs. This court

consolidated the three cause numbers.

ANALYSIS

We may dismiss a PRP if the petitioner fails to make a prima facie showing of error, remand

for a reference hearing “if the petitioner makes a prima facie showing but the merits of the

contentions cannot be determined solely from the record,” or “grant the PRP without further

hearing if the petitioner has proved actual prejudice or a miscarriage of justice.” In re Pers.

Restraint of Stockwell, 160 Wn. App. 172, 177, 248 P.3d 576 (2011).

I. TIME BAR

RCW 10.73.090(1) provides, “No petition or motion for collateral attack on a judgment

and sentence in a criminal case may be filed more than one year after the judgment becomes final

if the judgment and sentence is valid on its face and was rendered by a court of competent

jurisdiction.” The time bar does not apply if a petitioner’s judgment and sentence is facially invalid.

In re Pers. Restraint of Weber, 175 Wn.2d 247, 255, 284 P.3d 734 (2012). “A reviewing court may

use the documents signed as part of a plea agreement to determine facial invalidity if those

documents are relevant in assessing the validity of the judgment and sentence.” In re Pers.

Restraint of McKiearnan, 165 Wn.2d 777, 781-82, 203 P.3d 375 (2009).

Sylvester argues that the one-year time bar in RCW 10.73.090 does not apply because

Washington’s simple possession statute has been held unconstitutional, rendering his judgment

and sentences facially invalid because they contain an incorrect offender score. 2 The State

2 Sylvester also argues RCW 10.73.090’s “one-year time limit ‘does not apply’ when ‘the statute that the defendant was convicted of violating was unconstitutional.’” Suppl. Br. of Pet’r at 10

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

responds that a judgment and sentence is not invalid on its face where the trial court imposes “an

appropriate sentence within what would have been a correct sentencing range.” Resp. to PRP at

11. The State argues that the trial court did not exceed its sentencing authority because Sylvester

stipulated to the exceptional sentence and “a 133-month sentence could still be imposed by running

each of the counts consecutively at a different point within the standard sentencing range.” Id. at

14.

A conviction based on an unconstitutional statute cannot be included in an offender score,

even if the defendant agreed to a guilty plea with a sentencing recommendation based on the

incorrect offender score. State v. LaBounty, 17 Wn. App. 2d 576, 581-82, 487 P.3d 221 (2021).

The offender score is facially a part of the judgment and sentence. In re Pers. Restraint of Goodwin,

146 Wn.2d 861, 867, 50 P.3d 618 (2002). An excessive sentence based on an improperly calculated

offender score in a negotiated plea agreement will render a judgment and sentence facially invalid.

Id. at 869-70.

The State relies on In re Personal Restraint of Toledo-Sotelo, 176 Wn.2d 759, 297 P.3d 51

(2013), to argue that Sylvester’s judgment and sentence is not facially invalid because Sylvester

stipulated to the exceptional sentence and the trial court could impose the same sentence with a

corrected offender score by keeping the sentence for criminal impersonation at zero days, imposing

the high end of the correct standard range for the other offenses, and running the sentences

consecutively. Toledo-Sotelo received a standard-range sentence based on an offender score of 3

(quoting RCW 10.73.100(2)). But this petition addresses Sylvester’s sentences for custodial assault, unlawful possession of a firearm, third degree assault, and criminal impersonation—not simple possession. None of the crimes Sylvester pleaded guilty to in these cases has been declared unconstitutional since his guilty plea.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

and an offense seriousness level of XII; his offender score should have been 4 and the offense

seriousness level X. Toledo-Sotelo, 176 Wn.2d at 765, 767. The Supreme Court explained that the

judgment and sentence remained valid because “the trial court coincidentally used the sentencing

range that resulted from the correct offender score and seriousness level” and sentenced Toledo-

Sotelo in the middle of that standard range. Id. at 761.

The Toledo-Sotelo court distinguished both Goodwin and In re Personal Restraint of

Johnson, 131 Wn.2d 558, 933 P.2d 1019 (1997). It explained that in Johnson, the trial court

sentenced the defendant to the bottom of an incorrectly calculated standard range, rendering the

judgment and sentence facially invalid, and the Supreme Court remanded for resentencing

“[b]ecause there was evidence in the record that the court intended to sentence the petitioner to the

minimum sentence within the standard range.” Id. at 769. In Goodwin, the defendant pleaded guilty

and agreed to an incorrect offender score containing washed out juvenile convictions. 146 Wn.2d

at 867. Despite the negotiated plea agreement, the Supreme Court held that the incorrect offender

score rendered the judgment and sentence facially invalid because Goodwin’s “sentence is as a

matter of law in excess of what is statutorily permitted for his crimes given a correct offender

score.” Id. at 875-76. These cases were distinct from Toledo-Sotelo, where the errors were

“technical misstatements,” because there was “nothing to suggest that the trial court would have

sentenced Toledo-Sotelo differently if it had had the proper offender score (4) and seriousness

level (X) at sentencing.” 176 Wn.2d at 768-69.

This case bears more resemblance to Goodwin and Johnson than to Toledo-Sotelo. Here,

although Sylvester stipulated to the exceptional sentence, that sentence was based on an incorrectly

calculated offender score. Sylvester was sentenced to the bottom of the standard range for each

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

charge based on the offender score, and the trial court imposed these sentences consecutively

instead of concurrently. Had the trial court used offender scores of 6 points instead of 7, the

standard range for custodial assault would have been 22 to 29 months, the standard range for

unlawful possession of a firearm would have been 57 to 75 months, and the standard range for

third degree assault would have been 22 to 29 months. The bottom of the standard range for

criminal impersonation would have remained at zero days. Consecutive low-end sentences for

each crime would have amounted to 101 months of confinement—32 months less than the sentence

Sylvester received.

There is evidence in this record that the trial court would not have imposed an identical

sentence with a lower offender score and lower standard ranges because the bottom of each

sentencing range would have been different. Thus, Sylvester’s judgment and sentences are facially

invalid, and the trial court was correct to conclude that his CrR 7.8 motions were not time barred

under RCW 10.73.090.3

II. FUNDAMENTAL DEFECT AND PREJUDICE

A personal restraint petitioner seeking relief from a nonconstitutional error must

demonstrate by a preponderance of the evidence “‘a fundamental defect which inherently results

in a complete miscarriage of justice.’” In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383

P.3d 454 (2016) (internal quotation marks omitted) (quoting In re Pers. Restraint of Cook, 114

Wn.2d 802, 811, 792 P.2d 506 (1990)).

3 Sylvester also raises State v. Fletcher, 19 Wn. App. 2d 566, 497 P.3d 886 (2021), but we find it unnecessary to rely on that case.

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Sylvester argues that the incorrect offender score in his judgment and sentences is a

fundamental defect resulting in a complete miscarriage of justice. The State responds that Sylvester

cannot demonstrate prejudice from the erroneous offender score because he stipulated to the

offender score in the negotiated plea agreement. It also argues that the record “does not establish

that the trial court would have imposed a different sentence had the standard range been properly

calculated.” Suppl. Resp. to PRP at 9.

Both unlawful sentences and sentences based on miscalculated offender scores are

fundamental defects that result in “a complete miscarriage of justice,” and the remedy is remand

for resentencing under a corrected offender score. Goodwin, 146 Wn.2d at 876; In re Pers.

Restraint of Carrier, 173 Wn.2d 791, 818, 272 P.3d 209 (2012). This is true even when the

sentence is “within the correct standard range, if the trial court had indicated its intent to sentence

at the low end of the range, and the low end of the correct range is lower than the low end of the

range determined by using the incorrect offender score.” Goodwin, 146 Wn.2d at 868.

Although Sylvester pleaded guilty and stipulated to an exceptional sentence, the result was

four consecutive sentences, each at the bottom of the standard range, including one for zero days.

As discussed above, sentencing Sylvester in the same manner with the corrected offender score

would reduce his term of confinement by 32 months. Reducing the offender score would lower the

bottom of the standard range for each conviction, and the low end of the range was a central factor

in the negotiated plea agreement and the trial court’s sentence. There is evidence that the trial court

would not have sentenced Sylvester to the same term of confinement with a corrected offender

score. Thus, Sylvester has demonstrated the necessary prejudice. The incorrect offender score was

a fundamental defect resulting in a complete miscarriage of justice. Because Sylvester has

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

demonstrated a complete miscarriage of justice, we grant his PRPs and remand to the trial court

for resentencing.

III. EFFECT ON SYLVESTER’S PLEA AGREEMENT

Sylvester’s plea agreement stated that filing a CrR 7.8 motion would breach the agreement.

“In order to vacate a guilty plea on the basis of a defendant’s breach of the plea agreement, the

State must establish the breach in a hearing” before a trial court. State v. Malone, 138 Wn. App.

587, 592, 157 P.3d 909 (2007).

In the event that “remand for resentencing renders the plea agreement invalid,” Sylvester

concedes this “‘place[s] the parties back in the position they were in before they entered into the

agreement.’” Suppl. Br. of Pet’r at 31-32 (alteration in original) (quoting In re Pers. Restraint of

Thompson, 141 Wn.2d 712, 730, 10 P.3d 380 (2000)). He acknowledges that the State “may, if

appropriate, seek a ruling by the trial court that Sylvester is in breach of his plea agreement.” Reply

Br. of Pet’r at 3. The State similarly asks this court for an opportunity to argue breach of the plea

agreement on remand.

The trial court has not yet determined whether Sylvester breached his plea by seeking

resentencing. We agree with the parties that the State may seek such a hearing before the trial court

to resolve this question on remand.4

4 With regard to the effect on Sylvester’s plea agreement, the State argued only that Sylvester breached his plea agreement. It did not argue he waived the ability to collaterally attack his sentence.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

CONCLUSION

Sylvester’s CrR 7.8 motions were not time barred, and he is entitled to relief. We grant

Sylvester’s PRPs and remand for resentencing. On remand, the State may ask the trial court to first

determine whether Sylvester has breached his plea agreement.

Glasgow, C.J. We concur:

Worswick, J.P.T.

Price, J.