State Of Washington, V. Anthony Joseph Pascuzzi

541 P.3d 415

• Court: Court of Appeals of Washington
• Decided: January 17, 2024
• Docket: 57221-4
• Status: Published

Opinion

Filed Washington State Court of Appeals Division Two

January 17, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 57221-4-II

Respondent,

v.

ANTHONY JOSEPH PASCUZZI, PUBLISHED OPINION

Appellant.

GLASGOW, C.J. — A jury found Anthony Pascuzzi guilty of two counts of first degree child

molestation. The sentencing court imposed an exceptional sentence because the jury found that

Pascuzzi had used his position of trust to facilitate both offenses and the judge found that

Pascuzzi’s unscored misdemeanors, unscored foreign convictions, and other unscored convictions

resulted in a presumptive sentence that was clearly too lenient. In the sentencing court’s findings

of fact and conclusions of law, it wrote that these grounds, taken together or considered

individually, justified the exceptional sentence. And it wrote that it would impose the same

sentence regardless of Pascuzzi’s offender score.

Pascuzzi later filed a CrR 7.8 motion for relief from judgment because his offender score

needed to be reduced by one point after State v. Blake.1 Following a show cause hearing, the trial

1 197 Wn.2d 170, 481 P.3d 521 (2021). No. 57221-4-II

court denied the motion, reasoning that Pascuzzi’s sentence expressly would be the same

regardless of his offender score.

Pascuzzi appeals. He argues that it is unclear whether the sentencing court would have

imposed the same exceptional sentence if his offender score were different. We hold that the trial

court did not abuse its discretion in denying Pascuzzi’s CrR 7.8 motion and affirm.

FACTS

In 2011, a jury found Pascuzzi guilty of two counts of first degree child molestation. For

each count, the jury found an aggravating factor, determining that Pascuzzi had used his position

of trust to facilitate both offenses.

The sentencing court imposed an indeterminate sentence under RCW 9.94A.507(3), setting

a minimum term with a maximum term of life. Because Pascuzzi’s offender score was 8 for both

counts, a top-end standard range minimum term would have been 171 months and the maximum

term was life. But the sentencing court imposed an exceptional sentence of 200 months to life for

each count—29 months above the top of the standard range for the minimum term—to be served

concurrently. The judgment and sentence indicated that the sentencing court found “substantial

and compelling reasons that [justified] an exceptional sentence” in part because the jury found

aggravating factors. Clerk’s Papers (CP) at 3.

In findings of fact and conclusions of law supporting the exceptional sentence, the

sentencing court found that Pascuzzi’s unscored misdemeanor and foreign conviction history, as

well as the prior convictions omitted from Pascuzzi’s offender score calculation, resulted in a

presumptive sentence that was “clearly too lenient.” CP at 17 (Finding of Fact (FF) I). The court

also included the jury finding that Pascuzzi “used his position of trust or confidence to facilitate

2 No. 57221-4-II

the commission of the current” offenses. Id. And the sentencing court found that these grounds,

“taken together or considered individually, [constituted] sufficient cause to impose the exceptional

sentence.” Id. (FF II) (emphasis added). The sentencing court added a handwritten note:

“Additionally, this sentence is imposed regardless of the defendant’s offender score.” Id.

(emphasis added).

In 2021, Pascuzzi filed a CrR 7.8 motion for relief from judgment because his offender

score included a Florida drug possession conviction that he argued became void after Blake. The

trial court determined that the motion was not time barred under RCW 10.73.090 and that Pascuzzi

had “made a substantial showing that [he was] entitled to relief.” CP at 52. The trial court therefore

ordered a show cause hearing as required under the rule.

After the hearing, the trial court denied the CrR 7.8 motion. The trial court explained,

“[T]he sentence expressly excluded criminal history calculation, so the effect of Blake . . . is,

essentially, a non-event.” Verbatim Rep. of Proc. at 5.

Pascuzzi appeals the denial of his CrR 7.8 motion.

ANALYSIS

I. CrR 7.8 PROCEDURAL REQUIREMENTS

Under CrR 7.8, a superior court “may relieve a party from a final judgment” when the

“judgment is void.” Former CrR 7.8(b)(4) (2007). The superior court must transfer a defendant’s

CrR 7.8 motion “to the Court of Appeals for consideration as a personal restraint petition unless

the court determines that the motion” meets certain procedural requirements. Former CrR

7.8(c)(2).

3 No. 57221-4-II

First, the superior court must determine that the motion “is not barred by RCW 10.73.090.”

Id. RCW 10.73.090(1) prohibits a defendant from collaterally attacking a judgment and sentence

that became final more than one year ago “if the judgment and sentence is valid on its face and

was rendered by a court of competent jurisdiction.” A judgment and sentence may be invalid on

its face if the sentencing court calculated the defendant’s offender score using a conviction Blake

voided and the reduction in the offender score affected the standard range. See In re Pers. Restraint

of Richardson, 200 Wn.2d 845, 847, 525 P.3d 939 (2022).

Second, the superior court must determine either that “the defendant has made a substantial

showing that [they are] entitled to relief” or that “resolution of the motion will require a factual

hearing.” Former CrR 7.8(c)(2).

If the superior court “does not transfer the motion to the Court of Appeals,” it must order

a hearing and direct “the adverse party to appear and show cause why the relief asked for should

not be granted.” Former CrR 7.8(c)(3).

Here, the trial court concluded that the motion was timely and that Pascuzzi “made a

substantial showing that [he was] entitled to relief.” CP at 52.

II. DENIAL OF A CrR 7.8 MOTION

Pascuzzi argues that the trial court erred and we must remand for the trial court to

resentence him because his exceptional sentence was based on an erroneously calculated

sentencing range. He contends that while the sentencing court clearly intended to impose an

exceptional sentence, it is unclear whether the sentencing court would have imposed an

“exceptional sentence of the same length” if the top of the standard range had been different. Br.

of Appellant at 15. We disagree.

4 No. 57221-4-II

Our review of a trial court’s denial of a CrR 7.8 motion is “limited to determining whether

the trial court abused its discretion in denying [the] motion.” State v. Larranaga, 126 Wn. App.

505, 509, 108 P.3d 833 (2005). “A trial court abuses its discretion if its decision rests on untenable

factual grounds or was made for untenable legal reasons.” State v. Frohs, 22 Wn. App. 2d 88, 92,

511 P.3d 1288 (2022).

A CrR 7.8 motion for resentencing is a collateral attack. State v. Molnar, 198 Wn.2d 500,

509, 497 P.3d 858 (2021). To obtain relief by collateral attack, a defendant must either show that

a constitutional error actually prejudiced them or that a nonconstitutional error amounted to “a

fundamental defect resulting in a complete miscarriage of justice.” In re Pers. Restraint of Elmore,

162 Wn.2d 236, 251, 172 P.3d 335 (2007). A miscalculated offender score is a nonconstitutional

error. See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867, 50 P.3d 618 (2002).

In Goodwin, a case where the defendant received a standard range sentence, the

Washington Supreme Court held that “a sentence based upon a miscalculated offender score is a

fundamental defect that results in a complete miscarriage of justice.” Id. at 876. The court reasoned

that Goodwin’s miscalculated offender score led to a sentence that was, as a matter of law, “in

excess of what [was] statutorily permitted for his crimes.” Id. at 875-76.

But where a defendant receives an exceptional sentence, an incorrect offender score does

not always result in a complete miscarriage of justice. State v. Parker, though decided on direct

appeal, is instructive. 132 Wn.2d 182, 937 P.2d 575 (1997). In that case, the Washington Supreme

Court held that when a “sentencing court incorrectly calculates the standard range before imposing

an exceptional sentence, remand is the remedy unless the record clearly indicates the sentencing

court would have imposed the same sentence anyway.” Id. at 189.

5 No. 57221-4-II

In Parker, the sentencing judge said, “‘I am going to make those sentences run

consecutively. I think that adds up to something on the order of, if not exactly, 18 years.’” Id. at

192. On appeal, the Supreme Court concluded that this mention of a total sentence of 18 years was

not significant because it simply acknowledged the total amount of confinement imposed. Id. Thus,

this remark was not a clear indication that the sentencing court would have imposed the same

exceptional sentence regardless of the standard range.

Here, in contrast, the record shows that the sentencing court would have imposed the same

sentence even if Pascuzzi’s offender score had been different. The sentencing court specifically

wrote that it imposed the 200-month exceptional sentence “regardless of the defendant’s offender

score.” CP at 17 (FF II) (emphasis added). The trial court therefore reasonably concluded that

Pascuzzi’s sentence would not have changed even if the standard ranges for the first degree child

molestation convictions had changed.

Pascuzzi has the burden to prove a miscarriage of justice, but he offers no evidence that

the sentencing court meant to convey that it would have imposed a sentence 29 months above the

top of any applicable standard range. Under these particular circumstances, including that the

offender score would be reduced by only one point, the trial court’s reading of the sentencing

judge’s language was reasonable and not an abuse of discretion. The miscalculation therefore did

not result in a complete miscarriage of justice.

Moreover, unlike in Goodwin, there was statutory authority for Pascuzzi’s sentence in this

case. Former RCW 9.94A.535(2)(b), (2)(d), (3)(n) (2008). The sentencing court imposed an

exceptional sentence based on several findings of fact. The sentencing court found that Pascuzzi’s

unscored misdemeanors, unscored foreign convictions, and other unscored convictions resulted in

6 No. 57221-4-II

a presumptive sentence that was clearly too lenient, and the jury found that Pascuzzi used his

position of trust or confidence to facilitate the commission of his offenses. The sentencing court

also found that its grounds for the exceptional sentence, “taken together or considered individually,

[constituted] sufficient cause to impose the exceptional sentence.” CP at 17 (FF II).

The trial court did not abuse its discretion in concluding that the miscalculation of

Pascuzzi’s offender score was not a fundamental defect resulting in a complete miscarriage of

justice.

CONCLUSION

We affirm.

Glasgow, C.J. We concur:

Che, J.

Hull, J.P.T.

 Judge Hull is serving as a judge pro tempore of the court pursuant to RCW 2.06.150.