Personal Restraint Petition Of Ronald Brennan

• Court: Court of Appeals of Washington
• Decided: January 23, 2023
• Docket: 84286-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

IN THE MATTER OF THE No. 84286-2-I PERSONAL RESTRAINT OF:

RONALD JOHN BRENNAN, JR, UNPUBLISHED OPINION

Petitioner.

PER CURIAM — In 2018, Ronald Brennan was convicted of two counts of

distribution of a controlled substance to a minor with sexual motivation. For each count,

his offender score was calculated at 21 with a standard range sentencing of 124 to 144

months (inclusive of a 24-month sentencing enhancement). The trial court imposed an

upward exceptional sentence and ordered Brennan to serve 129 months on each count, to

run consecutively, for a total term of confinement of 258 months. This court affirmed his

convictions on direct review. 1

In February 2022, Brennan filed in the superior court a motion to resentence,

claiming that his judgment is void on its face because two prior convictions for unlawful

possession of a controlled substance were considered at his sentencing and those

convictions were subsequently invalidated pursuant to State v. Blake, 197 Wn.2d 170, 481

See State v. Brennan, No. 79508-2-I (Wash. Ct. App. Oct. 19, 2020) (unpublished), 1

https://www.courts.wa.gov/opinions/pdf/795082orderandopin.pdf, review denied, 196 Wn.2d 1045, 481 P.3d 552 (2021). No. 84286-2-I/2

P.3d 521 (2021).2 The superior court transferred Brennan’s motion to this court to be

considered as a personal restraint petition pursuant to CrR 7.8(c)(2).

In order to obtain collateral relief by means of a personal restraint petition, Brennan

must demonstrate either an error of constitutional magnitude that gives rise to actual

prejudice or a nonconstitutional error that inherently results in a “complete miscarriage of

justice.” In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).

Brennan fails to meet this burden.

Brennan contends that his judgment and sentence is facially invalid, as removing

the two possession convictions invalidated by Blake from his criminal history reduces his

offender score from 21 to 19. But at a score of 19, Brennan’s standard range remains 124

to 144 months (with enhancements). See RCW 9.94A.510 (highest standard range

reached at offender score of 9 or more). Because the superior court had authority to

sentence Brennan within that range, the judgment and sentence is not facially invalid. See

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); Ord. Granting

Rev. & Reversing, In re Pers. Restraint of Richardson, No. 101043-5, at 2 (Wash. Nov. 14,

2022) (a judgment and sentence is not facially invalid when offender score is 9 or more

and the standard range remains the same after removing drug possession conviction from

offender score).

2 In Blake, the Supreme Court held that (former) RCW 69.50.4013(1), the statute criminalizing simple drug possession, violates state and federal due process clauses and, therefore, is unconstitutional. 197 Wn.2d at 195. -2- No. 84286-2-I/3

Nor has Brennan established actual prejudice or a miscarriage of justice as a result

of being sentenced with an offender score of 21. This is so, as the trial court found when

sentencing Brennan, because it would have imposed the same exceptional sentence

regardless of the high offender score pursuant to RCW 9.94A.535(3)(f). Under that

provision, if an offense was committed with sexual motivation, as found by the jury here,

the trial court may impose a sentence outside the standard range or run counts

consecutively. Based upon the jury’s findings and consideration of “all of the ‘mitigating’

material” Brennan submitted at sentencing, the trial court found it appropriate to run the

counts consecutively. See RCW 9.94A.589(1)(a) (“Consecutive sentences may only be

imposed under the exceptional sentence provisions of RCW 9.94A.535.”).

In short, Brennan has not shown that his judgment and sentence is facially invalid

or demonstrated that he suffered actual and substantial prejudice from the trial court

sentencing him with an offender score of 21. Accordingly, Brennan’s personal restraint

petition must be dismissed.

WE CONCUR:

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