IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84121-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION STEVEN LANE ROSS,
Appellant.
SMITH, C.J. — Steven Ross pleaded guilty to first degree unlawful
possession of a firearm and possession of a controlled substance. He was
denied a DOSA in part because of his high offender score. Three years later,
following our Supreme Court’s Blake1 decision, Ross moved for relief from the
judgment under CrR 7.8, requesting the drug possession conviction be vacated
and that he be resentenced on the firearm possession charge. The trial court
concluded his motion was time barred as to the firearm charge and transferred it
to this court as a personal restraint petition. We remanded for the court to
consider it on the merits. The trial court vacated the drug possession conviction,
as well as three other prior drug possession convictions. It did not revisit Ross’s
firearm charge, concluding that it was time barred and that Ross had failed to
show prejudice when his offender score changed but his standard range
1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021) No. 84121-1-I/2
remained the same. Because we agree that Ross’s motion was time barred, we
affirm.
FACTS
In 2018, Steven Ross pleaded guilty to one count of first degree unlawful
possession of a firearm and one count of possessing a controlled substance.
The sentencing court calculated Ross’s offender score as 25 on both counts,
resulting in a standard range of 87 to 116 months as to the firearm possession
count and 12 to 24 months as to the drug possession count. The State
recommended a mid-range sentence of 101.5 months. At his sentencing
hearing, Ross sought a prison-based drug offender sentencing alternative
(DOSA),2 which the State contested.
After hearing from counsel, Ross’s close friend, and Ross, the court
denied Ross’s request for a DOSA and spoke at length about its reasoning for
doing so. It acknowledged Ross’s past successful efforts to deal with his
addiction, the guilty pleas, and Ross’s limited involvement with treatment as
factors weighing in favor of a DOSA sentence. But the court also stated that
there were “a number of factors that weigh[ed] heavily against a DOSA in this
particular matter.” The court noted that the “number and nature of the current
offenses” was “very concerning,” particularly due to the “number of victims who
have been impacted by [Ross’s] actions.” It also remarked that Ross had “a very
high offender score of 25,” which is “well above the threshold of 9 where there is
2 A DOSA is designed to provide substance use disorder treatment and
community supervision for individuals diagnosed with a substance disorder who have committed a drug or other statutory eligible crimes. 2 No. 84121-1-I/3
the maximum in terms of what the standard range would yield.” The court stated
that it “would be justified even on its own motion [] to impose an exceptional
sentence upwards well beyond what the prosecuting attorney recommend[ed].”
Finally, the court explained that “the sequence of events” in the case—Ross’s
pattern of repeatedly continuing to offend while out of custody pending trial—was
“of concern.”
Despite denying the DOSA request, the court said it was “prepared to go
below significantly the recommendation of the deputy prosecutor” and sentenced
Ross to 90 months on the firearm possession count, the controlling count.3
After our Supreme Court’s decision in Blake, Ross moved to vacate his
firearm and drug convictions and sought resentencing as to the firearm
conviction. See 197 Wn.2d at 195 (finding unconstitutional Washington’s strict
liability drug possession statute and rendering related convictions invalid). The
State moved to transfer the motion to this court as an untimely personal restraint
petition, arguing that Ross was not entitled to resentencing because the change
in his offender score did not change the standard sentencing range. The
superior court concluded that Ross’s request for resentencing on the firearm
possession charge was untimely and granted the State’s motion to transfer.4
3 The firearm possession count is controlling because it carries the longest
sentence and because the other count was set to run concurrently. 4 Although both parties agreed that the possession of a controlled
substance charge should be vacated per Blake, the court had not yet ruled on that conviction at the time it ruled on the transfer. 3 No. 84121-1-I/4
Ross then moved for reconsideration of the decision to transfer. The
State agreed that the motion should not have been transferred and moved this
court to remand the case, which was granted. On remand, the court vacated the
possession of a controlled substance conviction but denied Ross’s motion to
vacate the firearm possession conviction. The court concluded that Ross’s
motion was time barred as to his firearm conviction and that he did not meet any
of the RCW 10.73.100 timeliness exceptions. The court also noted that even if
Ross’s motion had been timely, he had failed to meet his burden of showing that
the reduction in his offender score resulted in actual and substantial prejudice.
Ross appeals.
ANALYSIS
On appeal, Ross contends that the judgment and sentence is invalid on its
face because he was sentenced with an offender score partially based on now
unconstitutional convictions. He asserts that the court erred in denying his
motion to vacate the firearm possession conviction and be resentenced on the
same. We disagree.
CrR 7.8 motions for relief from judgment are subject to a one year time
limit under RCW 10.73.090(1). However, this one year time bar does not apply
where a judgment is invalid on its face or if an exception under RCW 10.73.100
applies. RCW 10.73.090(1). A judgment is invalid on its face if the court enters
a judgment and sentence not authorized under the Sentencing Reform Act of
1981 (SRA), chapter 9.94A RCW. In re Pers. Restraint of Coats, 173 Wn.2d
4 No. 84121-1-I/5
123, 135, 267 P.3d 324 (2011); In re Pers. Restraint of Toledo-Sotelo, 176
Wn.2d 759, 767, 297 P.3d 51 (2013).
A recent case, In re Personal Restraint of Richardson, is instructive here.
200 Wn.2d 845, 847, 525 P.3d 939 (2022). In Richardson, the defendant was
convicted of first degree murder and second degree unlawful possession of a
firearm. 200 Wn.2d at 846. The superior court imposed a prison term within the
standard range for first degree murder. Richardson, 200 Wn.2d at 846.
Following Blake, Richardson filed a personal restraint petition challenging the
sentence on the basis that the offender score erroneously included a prior, now
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84121-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION STEVEN LANE ROSS,
Appellant.
SMITH, C.J. — Steven Ross pleaded guilty to first degree unlawful
possession of a firearm and possession of a controlled substance. He was
denied a DOSA in part because of his high offender score. Three years later,
following our Supreme Court’s Blake1 decision, Ross moved for relief from the
judgment under CrR 7.8, requesting the drug possession conviction be vacated
and that he be resentenced on the firearm possession charge. The trial court
concluded his motion was time barred as to the firearm charge and transferred it
to this court as a personal restraint petition. We remanded for the court to
consider it on the merits. The trial court vacated the drug possession conviction,
as well as three other prior drug possession convictions. It did not revisit Ross’s
firearm charge, concluding that it was time barred and that Ross had failed to
show prejudice when his offender score changed but his standard range
1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021) No. 84121-1-I/2
remained the same. Because we agree that Ross’s motion was time barred, we
affirm.
FACTS
In 2018, Steven Ross pleaded guilty to one count of first degree unlawful
possession of a firearm and one count of possessing a controlled substance.
The sentencing court calculated Ross’s offender score as 25 on both counts,
resulting in a standard range of 87 to 116 months as to the firearm possession
count and 12 to 24 months as to the drug possession count. The State
recommended a mid-range sentence of 101.5 months. At his sentencing
hearing, Ross sought a prison-based drug offender sentencing alternative
(DOSA),2 which the State contested.
After hearing from counsel, Ross’s close friend, and Ross, the court
denied Ross’s request for a DOSA and spoke at length about its reasoning for
doing so. It acknowledged Ross’s past successful efforts to deal with his
addiction, the guilty pleas, and Ross’s limited involvement with treatment as
factors weighing in favor of a DOSA sentence. But the court also stated that
there were “a number of factors that weigh[ed] heavily against a DOSA in this
particular matter.” The court noted that the “number and nature of the current
offenses” was “very concerning,” particularly due to the “number of victims who
have been impacted by [Ross’s] actions.” It also remarked that Ross had “a very
high offender score of 25,” which is “well above the threshold of 9 where there is
2 A DOSA is designed to provide substance use disorder treatment and
community supervision for individuals diagnosed with a substance disorder who have committed a drug or other statutory eligible crimes. 2 No. 84121-1-I/3
the maximum in terms of what the standard range would yield.” The court stated
that it “would be justified even on its own motion [] to impose an exceptional
sentence upwards well beyond what the prosecuting attorney recommend[ed].”
Finally, the court explained that “the sequence of events” in the case—Ross’s
pattern of repeatedly continuing to offend while out of custody pending trial—was
“of concern.”
Despite denying the DOSA request, the court said it was “prepared to go
below significantly the recommendation of the deputy prosecutor” and sentenced
Ross to 90 months on the firearm possession count, the controlling count.3
After our Supreme Court’s decision in Blake, Ross moved to vacate his
firearm and drug convictions and sought resentencing as to the firearm
conviction. See 197 Wn.2d at 195 (finding unconstitutional Washington’s strict
liability drug possession statute and rendering related convictions invalid). The
State moved to transfer the motion to this court as an untimely personal restraint
petition, arguing that Ross was not entitled to resentencing because the change
in his offender score did not change the standard sentencing range. The
superior court concluded that Ross’s request for resentencing on the firearm
possession charge was untimely and granted the State’s motion to transfer.4
3 The firearm possession count is controlling because it carries the longest
sentence and because the other count was set to run concurrently. 4 Although both parties agreed that the possession of a controlled
substance charge should be vacated per Blake, the court had not yet ruled on that conviction at the time it ruled on the transfer. 3 No. 84121-1-I/4
Ross then moved for reconsideration of the decision to transfer. The
State agreed that the motion should not have been transferred and moved this
court to remand the case, which was granted. On remand, the court vacated the
possession of a controlled substance conviction but denied Ross’s motion to
vacate the firearm possession conviction. The court concluded that Ross’s
motion was time barred as to his firearm conviction and that he did not meet any
of the RCW 10.73.100 timeliness exceptions. The court also noted that even if
Ross’s motion had been timely, he had failed to meet his burden of showing that
the reduction in his offender score resulted in actual and substantial prejudice.
Ross appeals.
ANALYSIS
On appeal, Ross contends that the judgment and sentence is invalid on its
face because he was sentenced with an offender score partially based on now
unconstitutional convictions. He asserts that the court erred in denying his
motion to vacate the firearm possession conviction and be resentenced on the
same. We disagree.
CrR 7.8 motions for relief from judgment are subject to a one year time
limit under RCW 10.73.090(1). However, this one year time bar does not apply
where a judgment is invalid on its face or if an exception under RCW 10.73.100
applies. RCW 10.73.090(1). A judgment is invalid on its face if the court enters
a judgment and sentence not authorized under the Sentencing Reform Act of
1981 (SRA), chapter 9.94A RCW. In re Pers. Restraint of Coats, 173 Wn.2d
4 No. 84121-1-I/5
123, 135, 267 P.3d 324 (2011); In re Pers. Restraint of Toledo-Sotelo, 176
Wn.2d 759, 767, 297 P.3d 51 (2013).
A recent case, In re Personal Restraint of Richardson, is instructive here.
200 Wn.2d 845, 847, 525 P.3d 939 (2022). In Richardson, the defendant was
convicted of first degree murder and second degree unlawful possession of a
firearm. 200 Wn.2d at 846. The superior court imposed a prison term within the
standard range for first degree murder. Richardson, 200 Wn.2d at 846.
Following Blake, Richardson filed a personal restraint petition challenging the
sentence on the basis that the offender score erroneously included a prior, now
invalid, conviction for possession of a controlled substance. Richardson, 200
Wn.2d at 847. On appeal, our Supreme Court concluded that Richardson’s
judgment and sentence was not facially invalid for the purposes of exempting his
personal restraint petition from the one year time limit imposed by
RCW 10.73.090(1) because Richardson’s standard range remained the same
despite the change in his offender score. Richardson, 200 Wn.2d at 847. The
Court noted that the superior court had imposed a sentence within that same
standard range and therefore, the sentence was authorized. Richardson, 200
Wn.2d at 847.
Richardson controls here. Like the defendant in Richardson, Ross
contends that the judgment and sentence is facially invalid with regard to his
firearm conviction because convictions invalid under Blake were included in his
offender score. But even with Ross’s lower offender score—21 instead of 25—
5 No. 84121-1-I/6
his standard range remains the same because the score remains above 9.5
Therefore, the sentence the court imposed was still authorized by the SRA, the
judgment is valid, and Ross’s motion is untimely.
Ross also asserts that resentencing is still appropriate because the
sentencing court based its denial of his DOSA in part on his “very high” offender
score. The State does not respond to that argument, but contends that even if
Ross’s motion were timely, he has not met his burden of showing that the
offender score reduction resulted in actual or substantial prejudice. Because we
conclude that the motion is untimely, we decline to consider either argument.
WE CONCUR:
5 Because the court vacated Ross’s four possession of a controlled substance convictions, his presumptive score at resentencing would have been 21 rather than 25. 6