Filed Washington State Court of Appeals Division Two
March 28, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 56475-1-II
Appellant,
v. UNPUBLISHED OPINION
TIMOTHY MICHAEL KELLY,
Respondent.
MAXA, P.J. – Timothy Kelly appeals the trial court’s order denying resentencing on
multiple May 2006 convictions after vacating one of the convictions – for unlawful possession of
a controlled substance (UPCS) – pursuant to State v. Blake, 197 Wn.2d 170, 481 P.3d 521
(2021). Kelly originally was sentenced to 116 months in confinement and up to 36 months of
community custody. Kelly also was sentenced to 387 months for multiple November 2006
convictions.
The trial court denied resentencing on Kelly’s May 2006 convictions because he already
had served his sentence and although Kelly’s offender score was reduced with the vacation of the
UPCS conviction and another UPCS conviction previously included in his offender score, the
standard sentencing range did not change. No. 56475-1-II
Kelly argues that the trial court erred in declining to resentence him for the May 2006
convictions pursuant to Blake. The State argues that (1) Kelly’s appeal is moot because he
already has served the confinement portion of his sentence; and (2) Kelly’s collateral attack in
the trial court more than a year after his sentence became final was time barred because once his
UPCS conviction was vacated, his judgment and sentence was facially valid.
We conclude that this appeal is not moot because Kelly has not yet served his term of
community custody, but we hold that Kelly’s request for resentencing was time barred.
Accordingly, we affirm the trial court’s order declining to resentence Kelly.
FACTS
In May 2006, Kelly was convicted of first degree burglary, two counts of second degree
assault, first degree possession of stolen property, first degree attempted theft, and UPCS. Based
on Kelly’s criminal history, his offender score for the first degree burglary conviction was a 14,
which gave him a standard sentencing range of 87-116 months. His offender score for the rest of
his convictions was an 11, which gave him varying sentencing ranges for each of the other
Kelly was sentenced to 116 months for first degree burglary and lesser amounts for the
remaining convictions. His sentences ran concurrently, giving him a total of 116 months in
confinement. Kelly also was sentenced to up to 36 months of community custody on the first
degree burglary and other convictions. As part of his community custody term, Kelly was
prohibited from having contact with the victims, was to remain within a specified geographical
boundary, and was to undergo an evaluation for substance abuse treatment.
2 No. 56475-1-II
In November 2006, Kelly was convicted of multiple other charges and was sentenced to
387 months of confinement.1 The trial court ordered Kelly’s sentences from the May 2006 and
November 2006 cases to run consecutively, giving him a total sentence of 116 months plus 387
months.
In November 2021, the trial court considered the effect of Blake on Kelly’s May 2006
convictions and sentences. The court vacated Kelly’s May 2006 UPCS conviction and the
related sentence and removed another UPCS conviction from his offender score but denied
Kelly’s request for resentencing on the remaining convictions.
Kelly appeals the trial court’s order denying his request for resentencing.
ANALYSIS
A. MOOTNESS
Initially, the State argues that Kelly’s appeal is moot because he already had served the
confinement portion of his sentence when he requested resentencing and so the trial court could
not provide any effective relief other than vacating Kelly’s UPCS conviction and sentence. We
disagree.
The expiration of a sentencing term renders a sentencing issue moot. State v. T.J.S.-M.,
193 Wn.2d 450, 454, 441 P.3d 1181 (2019). But here, Kelly has not completed his sentence. In
addition to a term of incarceration, the trial court imposed up to 36 months of community
custody as part of Kelly’s sentence. The community placement portion of a sentence is tolled
1 Kelly originally was sentenced to 327 months, but after appeal the sentence was increased to 387 months.
3 No. 56475-1-II
during the period that the defendant is in confinement. RCW 9.94A.171(3)(a).2 Although Kelly
completed the confinement portion of his sentence, he has not begun the community custody
portion of his sentence because he is still incarcerated due to the November 2006 convictions.
Therefore, his sentencing term has not expired.
In addition, at resentencing the trial court would have been able to provide effective relief
other than vacating Kelly’s UPCS conviction and sentence. The court would have the discretion
to alter the conditions of Kelly’s community custody term because several of the original
conditions were discretionary. RCW 9.94A.703(3)(a)-(b). And Kelly’s previous community
custody sentence of up to 36 months now would be a fixed term of 18 months under current law.
RCW 9.94A.701(2).
Therefore, we conclude that Kelly’s appeal is not moot.
B. TIMELINESS OF RESENTENCING REQUEST
The State argues that Kelly’s request in the trial court for collateral relief – resentencing –
was time barred. We agree.
A collateral attack is “any form of postconviction relief other than a direct appeal.” RCW
10.73.090(2). Therefore, Kelly’s request for resentencing was a request for postconviction relief.
And the request came long after his judgment and sentence became final.
Under RCW 10.73.090(1), a defendant may not collaterally attack their judgment and
sentence “more than one year after the judgment becomes final if the judgment and sentence is
valid on its face” or one of the exceptions in RCW 10.73.100 applies. RCW 10.73.100 lists six
exceptions to the one-year time limit. Unless a defendant shows that the judgment and sentence
2 Although the sections of chapter 9.94A cited in this opinion have been amended several times since the events at issue in this case, the amendments do not affect our analysis so we cite to the current versions of these sections.
4 No. 56475-1-II
is facially invalid or one of the RCW 10.73.100 exceptions applies, a collateral attack is time
barred. In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002).
The State concedes, and we agree, that Kelly’s request to vacate his UPCS conviction and
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Filed Washington State Court of Appeals Division Two
March 28, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 56475-1-II
Appellant,
v. UNPUBLISHED OPINION
TIMOTHY MICHAEL KELLY,
Respondent.
MAXA, P.J. – Timothy Kelly appeals the trial court’s order denying resentencing on
multiple May 2006 convictions after vacating one of the convictions – for unlawful possession of
a controlled substance (UPCS) – pursuant to State v. Blake, 197 Wn.2d 170, 481 P.3d 521
(2021). Kelly originally was sentenced to 116 months in confinement and up to 36 months of
community custody. Kelly also was sentenced to 387 months for multiple November 2006
convictions.
The trial court denied resentencing on Kelly’s May 2006 convictions because he already
had served his sentence and although Kelly’s offender score was reduced with the vacation of the
UPCS conviction and another UPCS conviction previously included in his offender score, the
standard sentencing range did not change. No. 56475-1-II
Kelly argues that the trial court erred in declining to resentence him for the May 2006
convictions pursuant to Blake. The State argues that (1) Kelly’s appeal is moot because he
already has served the confinement portion of his sentence; and (2) Kelly’s collateral attack in
the trial court more than a year after his sentence became final was time barred because once his
UPCS conviction was vacated, his judgment and sentence was facially valid.
We conclude that this appeal is not moot because Kelly has not yet served his term of
community custody, but we hold that Kelly’s request for resentencing was time barred.
Accordingly, we affirm the trial court’s order declining to resentence Kelly.
FACTS
In May 2006, Kelly was convicted of first degree burglary, two counts of second degree
assault, first degree possession of stolen property, first degree attempted theft, and UPCS. Based
on Kelly’s criminal history, his offender score for the first degree burglary conviction was a 14,
which gave him a standard sentencing range of 87-116 months. His offender score for the rest of
his convictions was an 11, which gave him varying sentencing ranges for each of the other
Kelly was sentenced to 116 months for first degree burglary and lesser amounts for the
remaining convictions. His sentences ran concurrently, giving him a total of 116 months in
confinement. Kelly also was sentenced to up to 36 months of community custody on the first
degree burglary and other convictions. As part of his community custody term, Kelly was
prohibited from having contact with the victims, was to remain within a specified geographical
boundary, and was to undergo an evaluation for substance abuse treatment.
2 No. 56475-1-II
In November 2006, Kelly was convicted of multiple other charges and was sentenced to
387 months of confinement.1 The trial court ordered Kelly’s sentences from the May 2006 and
November 2006 cases to run consecutively, giving him a total sentence of 116 months plus 387
months.
In November 2021, the trial court considered the effect of Blake on Kelly’s May 2006
convictions and sentences. The court vacated Kelly’s May 2006 UPCS conviction and the
related sentence and removed another UPCS conviction from his offender score but denied
Kelly’s request for resentencing on the remaining convictions.
Kelly appeals the trial court’s order denying his request for resentencing.
ANALYSIS
A. MOOTNESS
Initially, the State argues that Kelly’s appeal is moot because he already had served the
confinement portion of his sentence when he requested resentencing and so the trial court could
not provide any effective relief other than vacating Kelly’s UPCS conviction and sentence. We
disagree.
The expiration of a sentencing term renders a sentencing issue moot. State v. T.J.S.-M.,
193 Wn.2d 450, 454, 441 P.3d 1181 (2019). But here, Kelly has not completed his sentence. In
addition to a term of incarceration, the trial court imposed up to 36 months of community
custody as part of Kelly’s sentence. The community placement portion of a sentence is tolled
1 Kelly originally was sentenced to 327 months, but after appeal the sentence was increased to 387 months.
3 No. 56475-1-II
during the period that the defendant is in confinement. RCW 9.94A.171(3)(a).2 Although Kelly
completed the confinement portion of his sentence, he has not begun the community custody
portion of his sentence because he is still incarcerated due to the November 2006 convictions.
Therefore, his sentencing term has not expired.
In addition, at resentencing the trial court would have been able to provide effective relief
other than vacating Kelly’s UPCS conviction and sentence. The court would have the discretion
to alter the conditions of Kelly’s community custody term because several of the original
conditions were discretionary. RCW 9.94A.703(3)(a)-(b). And Kelly’s previous community
custody sentence of up to 36 months now would be a fixed term of 18 months under current law.
RCW 9.94A.701(2).
Therefore, we conclude that Kelly’s appeal is not moot.
B. TIMELINESS OF RESENTENCING REQUEST
The State argues that Kelly’s request in the trial court for collateral relief – resentencing –
was time barred. We agree.
A collateral attack is “any form of postconviction relief other than a direct appeal.” RCW
10.73.090(2). Therefore, Kelly’s request for resentencing was a request for postconviction relief.
And the request came long after his judgment and sentence became final.
Under RCW 10.73.090(1), a defendant may not collaterally attack their judgment and
sentence “more than one year after the judgment becomes final if the judgment and sentence is
valid on its face” or one of the exceptions in RCW 10.73.100 applies. RCW 10.73.100 lists six
exceptions to the one-year time limit. Unless a defendant shows that the judgment and sentence
2 Although the sections of chapter 9.94A cited in this opinion have been amended several times since the events at issue in this case, the amendments do not affect our analysis so we cite to the current versions of these sections.
4 No. 56475-1-II
is facially invalid or one of the RCW 10.73.100 exceptions applies, a collateral attack is time
barred. In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002).
The State concedes, and we agree, that Kelly’s request to vacate his UPCS conviction and
associated sentence is timely under RCW 10.73.100(2) because that conviction was
unconstitutional. However, Kelly does not claim that any of the RCW 10.73.100 exceptions
apply to his sentence on the remaining convictions. Therefore, his request for resentencing was
time barred unless the judgment and sentence is facially invalid.
Here, although Kelly’s offender score changed due to his UPCS conviction being vacated
and another UPCS conviction being removed, his standard sentencing range did not change.
Therefore, the trial court accurately calculated the standard sentencing range and his sentence
still was within the SRA-authorized sentencing range. In Kelly’s linked case involving the
resentencing for his November 2006 convictions, this court held that the judgment and sentence
is not facially invalid in this situation. State v. Kelly, No. 56461-1-II, slip op. at 10-11 (Wash.
Mar. 21, 2023), https://www.courts.wa.gov/opinions/pdf/D2%2056461-1-
II%20Published%20Opinion.pdf.
Because Kelly’s judgment and sentence remained facially valid after the UPCS
conviction was vacated and another UPCS conviction was removed from his offender score, his
request for resentencing was time barred. Although the trial court did not expressly base its
ruling on untimeliness, we can affirm on any grounds that the record supports. State v. Gudgell,
20 Wn. App. 2d 162, 183, 499 P.3d 229 (2021). Accordingly, we do not address the merits of
his appeal.
CONCLUSION
We affirm the trial court’s order declining to resentence Kelly.
5 No. 56475-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
MAXA, P.J.
We concur:
LEE, J.
CHE, J.