State of Washington v. Clark Allen Tellvik ( 2021 )


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  •                                                               FILED
    DECEMBER 21, 2021
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                           )         No. 37596-0-III
    )
    Respondent,                  )
    )
    v.                                          )         UNPUBLISHED OPINION
    )
    CLARK ALLEN TELLVIK,                           )
    )
    Appellant.                   )
    PENNELL, C.J. — Clark Allen Tellvik appeals a trial court order regarding his
    motion for relief from judgment under CrR 7.8. He also appeals the terms of his amended
    judgment and sentence. As the parties agree, this matter must be remanded for the trial
    court to assess Mr. Tellvik’s CrR 7.8 motion and for resentencing.
    FACTS
    In 2016, a jury convicted Mr. Tellvik of first degree burglary, possession of a
    stolen vehicle, possession with intent to deliver a controlled substance, making or having
    burglary tools, possession of a stolen firearm, and second degree unlawful possession of
    a firearm. The jury also found firearm enhancements on the convictions for burglary,
    possession of a stolen vehicle, and possession with intent to deliver a controlled
    substance. Mr. Tellvik appealed his convictions, which this court affirmed except for a
    No. 37596-0-III
    State v. Tellvik
    conviction for possession with intent to deliver a controlled substance. State v.
    Tellvik, No. 34525-4-III, slip op. at 8 (Wash. Ct. App. Jun. 14, 2018) (unpublished),
    https://www.courts.wa.gov/opinions/pdf/345254_unp.pdf, rev’d in part sub nom.
    State v. Peck, 
    194 Wn.2d 148
    , 161, 
    449 P.3d 235
     (2019). The Supreme Court’s decision
    in its consolidated review of Tellvik and Peck became final on issuance of a mandate on
    July 31, 2020.
    On February 14, 2020, Mr. Tellvik filed a motion for relief of judgment under
    CrR 7.8. The motion challenged Mr. Tellvik’s conviction. It was based on arguments
    not previously raised on appeal.
    Shortly after Mr. Tellvik filed the CrR 7.8 motion, but before issuance of the
    Supreme Court’s mandate, the trial court held a hearing to address errors in the original
    judgment and sentence. The errors had been brought to the court’s attention by the
    Washington State Department of Corrections. As a result of the hearing, the trial court
    issued an amended judgment and sentence. The court declined to address the merits
    of Mr. Tellvik’s CrR 7.8 motion, explaining it lacked jurisdiction because the Supreme
    Court had not yet mandated Mr. Tellvik’s appeal back to the trial court. The court then
    denied Mr. Tellvik’s CrR 7.8 motion and directed it to be transferred it to this court for
    consideration as a personal restraint petition. The petition was later remanded back to the
    2
    No. 37596-0-III
    State v. Tellvik
    trial court as its transfer order failed to meet the requirements of CrR 7.8(c)(2). See Order
    Remanding Personal Restraint Petition, In re Pers. Restraint of Tellvik, No. 37412-2-III
    (Wash. Ct. App. May 7, 2020).
    On March 10, 2020, Mr. Tellvik appealed from his amended judgment and
    sentence and the order denying his CrR 7.8 motion. The trial court later found Mr. Tellvik
    to be indigent.
    ANALYSIS
    The issues on appeal pertain to the trial court’s disposition of Mr. Tellvik’s
    CrR 7.8 motion and the terms of the amended judgment and sentence. The parties agree
    Mr. Tellvik is entitled to remand regarding these issues. Thus, little discussion of the
    issues is necessary.
    With respect to the CrR 7.8 motion, we agree with the parties that the trial court
    had jurisdiction to review the substance of the motion, despite the fact that a mandate had
    not yet been issued from the Supreme Court. Mr. Tellvik’s motion was not time barred
    under RCW 10.73.090, and neither CrR 7.8 nor RCW 10.73.090 require a CrR 7.8 motion
    to be filed after a final mandate has been entered in an appeal. Therefore, the trial court
    should have handled Mr. Tellvik’s motion pursuant to the regularly-applicable terms
    3
    No. 37596-0-III
    State v. Tellvik
    of CrR 7.8. We remand for that purpose. See In re Pers. Restraint of Ruiz-Sanabria,
    
    184 Wn.2d 632
    , 638-39, 
    362 P.3d 758
     (2015).
    Our remand order should not be read to preordain the results of the trial court’s
    CrR 7.8 analysis. The trial court may decide Mr. Tellvik is entitled to a fact-finding
    hearing or a hearing on the merits. CrR 7.8(c)(2). Or it may conclude Mr. Tellvik’s
    motion must be transferred to this court as a personal restraint petition. 
    Id.
     We express no
    opinion on these issues.
    The parties also agree Mr. Tellvik is entitled to resentencing based on several
    errors in the amended judgment and sentence. We concur. First, Mr. Tellvik is entitled
    to resentencing because his offender score includes at least one conviction for simple
    possession of a controlled substance rendered void by the Supreme Court’s decision
    in State v. Blake, 
    197 Wn.2d 170
    , 
    481 P.3d 521
     (2021). Second, the term of community
    custody imposed in relation to Mr. Tellvik’s conviction for possession with intent to
    distribute a controlled substance (Count Three) cannot result in a total combined term
    (incarceration plus community custody) greater than the statutory maximum of
    120 months. Former RCW 9.94A.701(9) (2010). Third, the judgment and sentence cannot
    include a $200 criminal filing fee or a DNA (deoxyribonucleic acid) collection fee, as
    Mr. Tellvik is indigent and has already submitted a DNA sample as a result of a prior
    4
    No. 37596-0-III
    State v. Tellvik
    conviction. RCW 36.18.020(2)(h) (filing fee); RCW 43.43.7541 (DNA). Fourth, the
    judgment and sentence must not include references to inapplicable sentencing
    enhancements under RCW 9.94A.533(4)(e) and RCW 9.94.533(8)(b).
    CONCLUSION
    We remand to the trial court for consideration of Mr. Tellvik’s CrR 7.8 motion for
    relief from judgment. Mr. Tellvik’s sentence is reversed and we remand for resentencing
    pursuant to the terms of this opinion. Given our disposition of this appeal, Mr. Tellvik’s
    motion to modify our Clerk’s Ruling denying his motion to extend time to file a statement
    of additional grounds for review is denied as moot.
    A majority of the panel has determined this opinion will not be printed in
    the Washington Appellate Reports, but it will be filed for public record pursuant to
    RCW 2.06.040.
    _________________________________
    Pennell, C.J.
    WE CONCUR:
    ____________________________
    Siddoway, J.
    Staab, J.
    5
    

Document Info

Docket Number: 37596-0

Filed Date: 12/21/2021

Precedential Status: Non-Precedential

Modified Date: 12/21/2021