State Of Washington, V. Edward R. Whittington

• Court: Court of Appeals of Washington
• Decided: January 23, 2023
• Docket: 83019-8
• Status: Unpublished

Opinion

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

THE STATE OF WASHINGTON, No. 83019-8-I

Respondent,

v. UNPUBLISHED OPINION EDWARD R. WHITTINGTON, AKA “CHICAGO,”

Appellant.

BOWMAN, J. — The trial court granted Edward R. Whittington’s CrR

7.8(b)(4) motion for resentencing to correct his offender score after our Supreme

Court’s decision in Blake.1 Whittington appeals the court’s refusal to also

determine whether his out-of-state convictions were comparable to Washington

felonies while calculating his offender score at resentencing. The court

determined that the doctrine of res judicata barred Whittington from challenging

comparability at resentencing. We conclude that res judicata does not bar

Whittington from challenging the comparability of his out-of-state convictions at

resentencing because his original judgment and sentence is void under CrR

7.8(b)(4) and does not amount to a final judgment. We reverse and remand for a

full resentencing at which Whittington may challenge the comparability of his out-

of-state convictions.

1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).

This opinion bases the citations and pin cites on the Westlaw online version of the cited material. No. 83019-8-I/2

FACTS

A jury convicted Whittington of two counts of first degree rape in 2005. At

sentencing, the State showed that Whittington had two prior convictions for

possession of a stolen motor vehicle, two convictions for forgery, one conviction

for theft, and three convictions for possession of a controlled substance. All but

two of the convictions occurred in Illinois. Whittington agreed that his out-of-state

convictions were comparable to felonies in Washington, so the court calculated

his offender score as 8. Based on that offender score, the court “merge[d]” the

two counts of rape in the first degree and sentenced Whittington to an

indeterminate, concurrent, standard-range sentence of 250 months to life.

Whittington appealed his sentence. For the first time on appeal,

Whittington argued that three of his out-of-state convictions2 were not

comparable to Washington felonies. We affirmed his offender score “[b]ecause

Whittington affirmatively agreed with the State’s characterization of his criminal

history.” State v. Whittington, noted at 142 Wn. App. 1026, 2008 WL 116270, at

*2-*3.3

On July 12, 2021, in light of our Supreme Court’s decision in Blake

declaring the simple drug possession statute unconstitutional,4 Whittington

moved to be resentenced. He argued his sentence and judgment was void

2 Two 1998 convictions for possession of a stolen motor vehicle and one 1993 conviction for theft. 3 We also reversed the sentence on count II in violation of double jeopardy and directed the trial court to vacate that conviction on remand. Whittington, 2008 WL 116270, at *1-*2. 4 Blake, 197 Wn.2d at 195.

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under CrR 7.8(b)(4) because his offender score relied on three unconstitutional

convictions for possession of a controlled substance. Whittington also asked to

be resentenced because his out-of-state convictions for possession of a stolen

vehicle and theft are not comparable to Washington felonies. The State agreed

that Blake entitled Whittington to be resentenced but moved to transfer

Whittington’s comparability claim to the Court of Appeals as a personal restraint

petition because that issue was time barred.

The trial court granted Whittington’s CrR 7.8(b)(4) motion for resentencing,

voiding the judgment and sentence. At resentencing, Whittington refused to

stipulate to the comparability of his out-of-state convictions, asking the court to

hold the State to its burden to “prove by a preponderance of the evidence the

existence of prior convictions used to calculate [his] offender’s score.” But the

court denied his “motion for the court to reconsider the non-[Blake] out of state

convictions” based on res judicata. The court recalculated Whittington’s offender

score as 5 and imposed a standard-range sentence of 150 months.

Whittington appeals.

ANALYSIS

Whittington argues the trial court erred by refusing to engage in a

comparability analysis of his out-of-state convictions when recalculating his

offender score at resentencing. We agree.5

5 Whittington also argues that “[i]f the resentencing court did not err in refusing to consider [his] challenge to the comparability of his prior Illinois felony convictions,” his counsel was ineffective for failing to fully litigate the issue. Because we agree that the trial court erred by refusing to analyze Whittington’s out-of-state convictions, we do not address the argument.

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We review a sentencing court’s decision for a clear abuse of discretion or

misapplication of the law. State v. Haag, 198 Wn.2d 309, 317, 495 P.3d 241

(2021). A court’s failure to recognize it has discretion under the law is itself an

abuse of discretion. See State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106

(2017) (error when court operates under mistaken belief it lacks discretion to

consider exceptional sentence). And an erroneous interpretation of the law

necessarily constitutes an abuse of discretion. State v. B.O.J., 194 Wn.2d 314,

322-23, 449 P.3d 1006 (2019).

Res judicata bars the relitigation of claims and issues litigated to a final

judgment in a prior action. Spokane County v. Miotke, 158 Wn. App. 62, 66, 240

P.3d 811 (2010). The doctrine applies in criminal cases. State v. Dupard, 93

Wn.2d 268, 273, 609 P.2d 961 (1980) (citing State v. Peele, 75 Wn.2d 28, 30,

448 P.2d 923 (1968)). Res judicata bars relitigation when a prior judgment

addresses the same (1) subject matter, (2) cause of action, (3) persons and

parties, and (4) identity of interest. Miotke, 158 Wn. App. at 66. The threshold

requirement of res judicata is a valid and final judgment on the merits in a prior

action. Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99 (2009). Whether

res judicata bars an action is a question of law we review de novo. Id.

CrR 7.8 allows parties in a criminal case to move for relief from a final

judgment. Under CrR 7.8(b)(4), a trial court may relieve a party from a final

judgment if the party shows that the judgment is void.

Here, the trial court agreed that Whittington’s offender score was incorrect

following our Supreme Court’s decision in Blake. As a result, the court granted

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Whittington’s CrR 7.8(b)(4) motion for relief from a void judgment and sentence

and resentenced him using a corrected offender score. But the court refused to

engage in a comparability analysis of Whittington’s out-of-state convictions

because “there’s been finality that is attached to those convictions through the

prior litigation through the Court of Appeals and the decision that’s been

rendered there.” The trial court was incorrect.

The trial court’s order granting Whittington’s CrR 7.8(b)(4) motion for

resentencing served to vacate Whittington’s judgment and sentence. This is so

even though the order does not use the word “vacate.” See In re Pers. Restraint

of Skylstad, 160 Wn.2d 944, 954, 162 P.3d 413 (2007) (a court that reverses a

sentence effectively vacates the judgment); State v. Waller, 197 Wn.2d 218, 230,

418 P.3d 515 (2021) (order granting CrR 7.8(b) motion to vacate and scheduling

resentencing serves to vacate the judgment and sentence). As a result, the

court’s order “destroyed” the finality of Whittington’s judgment and sentence, and

it no longer was a final judgment on the merits. State v. Harrison, 148 Wn.2d

550, 562, 61 P.3d 1104 (2003). Because there is no final judgment on the

merits, res judicata does not apply.

The State argues that even though the trial court referred to “res judicata”

when explaining why Whittington could not challenge the comparability of his

Illinois convictions, the court’s ruling “reflects a correct understanding that

although Whittington was entitled to removal of the Blake-voided convictions,

there was ‘finality’ regarding other portions of the judgment and sentence that

Whittington was not entitled to disturb.” In support, the State cites In re Personal

5 No. 83019-8-I/6

Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002). But Goodwin does

not apply here.

In Goodwin, the defendant pleaded guilty to amended felony charges after

reaching a plea agreement with the State. 146 Wn.2d at 863-64. The defendant

collaterally attacked his sentence, arguing the court used an incorrect offender

score to sentence him because several prior juvenile offenses should have

“ ‘washed out’ ” under former RCW 9.94A.030 (1989). Id. at 864-65. On appeal,

the State argued former RCW 9.94A.030 did not entitle the defendant to relief

because “he agreed to the criminal history in the plea agreement and the State

has detrimentally relied on that agreement.” Id. at 867. Our Supreme Court

rejected the State’s argument. Id. at 876. It explained that “[o]ur focus is not the

voluntariness of the plea agreement.” Id. The issue is the defendant’s unlawful

sentence, and correcting an erroneous sentence that the court imposed in

excess of its statutory authority “does not affect the finality of that portion of the

judgment and sentence that was correct and valid when imposed.” Id. at 877.

Here, the court determined that Whittington’s sentence was void because

of an incorrect offender score. The remedy for an incorrect offender score is

resentencing using a corrected offender score. See State v. Schwartz, 194

Wn.2d 432, 438, 450 P.3d 141 (2019). Unlike in Goodwin, Whittington was not

asking the court to consider issues unrelated to the recalculation of his offender

score at resentencing. Instead, Whittington was asking the court to ensure that

his offender score was accurate considering all of his criminal history. Indeed,

RCW 9.94A.530(2) entitles Whittington to revisit all relevant criminal history at

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resentencing.6 This is to “ensure that sentences imposed accurately reflect the

offender’s actual, complete criminal history, whether imposed at sentencing or

upon resentencing.” LAWS OF 2008, ch. 231, § 1(3).

The State next argues that RCW 10.73.090 time-bars Whittington from

seeking a comparability analysis at resentencing. That statute says a defendant

must bring a collateral attack within one year after the judgment and sentence

becomes final unless the judgment is invalid on its face. RCW 10.73.090(1). A

judgment is invalid on its face when the court exceeds its statutory authority in

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

123, 135, 267 P.3d 324 (2011). And the judgment and sentence must evidence

the invalidity without further elaboration. Goodwin, 146 Wn.2d at 866.

The State is correct that Whittington’s challenge to the comparability of his

out-of-state convictions does not alone support a finding that his judgment and

sentence is facially invalid and that RCW 10.73.090(1) would bar relief on that

basis. See In re Pers. Restraint of Banks, 149 Wn. App. 513, 519-21, 204 P.3d

260 (2009) (defendant’s collateral attack of offender score based on

comparability of out-of-state convictions dismissed as untimely because

judgment and sentence valid on its face). But the trial court did not grant relief

under CrR 7.8(b)(4) on Whittington’s comparability claim. Instead, it granted

relief based on his timely claim that Blake rendered his offender score incorrect

and his judgment and sentence void. The State cites no authority to support its

6 RCW 9.94A.530(2) provides, “On remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented.”

7 No. 83019-8-I/8

argument that the trial court must ignore the comparability of Whittington’s out-of-

state convictions at resentencing because the issue would not separately warrant

resentencing under CrR 7.8(b). As a result, we assume the State found none.

Helmbreck v. McPhee, 15 Wn. App. 2d 41, 57, 476 P.3d 589 (2020) (“Where no

authorities are cited in support of a proposition, we are not required to search out

authorities, but may assume that counsel, after diligent search, has found

none.”).

Because the trial court’s order granting Whittington’s CrR 7.8(b)(4) motion

for resentencing vacated the original judgment and sentence, it does not amount

to a final judgment, and res judicata does not bar Whittington from challenging

the comparability of his out-of-state convictions when recalculating his offender

score at resentencing. We reverse and remand for a full resentencing at which

Whittington may challenge the comparability of his out-of-state convictions.

WE CONCUR: