Personal Restraint Petition Of Finos Dale Fox, Iii ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
April 27, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
No. 52392-2-II
In the Matter of the
Personal Restraint of
FINOS DALE FOX, III,
Petitioner. UNPUBLISHED OPINION
CRUSER, J. – Finos D. Fox, III seeks collateral relief from personal restraint imposed
following his 2013 guilty plea to four counts of third degree assault. Fox’s grounds for relief
include claims that (1) his restraint is unlawful because the four counts of third degree assault arise
from a single act, violating constitutional protections against double jeopardy; (2) that his
exceptional sentence for each count was clearly too excessive and thus exceeded the trial court’s
sentencing authority; and (3) that the parties’ stipulation to an agreed exceptional sentence did not
provide a sufficient factual basis to support his sentence. We hold that Fox’s untimely petition is
mixed, and we dismiss his petition.
FACTS
The State originally charged Fox with first degree assault with a deadly weapon
enhancement for an incident that took place on July 11, 2012. The State filed a persistent offender
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notice, informing Fox that his charged offense is a “‘Most Serious Offense,’” under RCW
9.94A.030. Response to Personal Restraint Petition (PRP) app. at 30. The notice further advised
Fox that if he were convicted of first degree assault, and he had previously been convicted on two
previous occasions of other “‘most serious offenses,’” he would be sentenced to life in prison as a
persistent offender under RCW 9.94A.570. Id.
To avoid a possible third strike and a mandatory life sentence, Fox negotiated a plea
settlement with the State. Fox agreed to plead guilty to four counts of third degree assault in
exchange for the State not pursuing the assault in the first degree charge. Although the facts of the
underlying incident did not give rise to four counts of third degree assault, Fox entered his plea as
allowed in In re Personal Restraint of Barr, 102 Wn.2d 265, 684 P.2d 712 (1984). Under Barr,
the parties may establish a plea agreement predicated on amended charges that lack factual support
provided that a factual basis exists to support the original charge. 102 Wn.2d at 270. With an
offender score of 7, Fox's standard range sentence for each count of third degree assault was 33-
43 months confinement.
However, the agreement between Fox and the State specified that the parties would
recommend an exceptional sentence of 60 months for each third degree assault count to run
consecutively for a total of 240 months confinement. In his agreement to waive a jury trial on
aggravating factors, Fox stipulated:
I am informed and I fully understand and stipulate that a conviction on the original charges
filed in the original information may constitute a third strike and I would then be sentenced
to life in prison without the possibility of parole because I would be a “persistent offender.”
The prosecuting attorney has agreed to reduce the charge, however, to allow me to serve a
20 year sentence in lieu of life without parole. This 20 year sentence can only be
accomplished if I stipulate to an exceptional sentence above the standard range on each
count and that all sentences run consecutive to each other, because there are no statutory
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No. 52392-2-II
aggravating factors warranting the exceptional sentence. This is done purely to avoid a life
sentence.
Response to PRP app. at 46-47.
The trial court accepted Fox’s guilty plea and sentenced him as recommended. In paragraph
2.4 of Fox’s judgment and sentence, under the section regarding Fox’s exceptional sentence, the
trial court entered a finding specifying that it imposed the exceptional sentence based on the
parties’ stipulation that such a sentence would best serve the interests of justice. Fox did not file
an appeal, and his judgment became final in 2013. RCW 10.73.090(3)(a).
Fox filed this petition for collateral relief in 2018. He claimed that his restraint was
unlawful because the four counts of third degree assault violated the constitutional protections
against double jeopardy, that his exceptional sentence was clearly too excessive and thus exceeded
the trial court’s sentencing jurisdiction, and the judgment and sentence was invalid on its face
because the stipulated exceptional sentence lacked sufficient factual support.1
DISCUSSION
Fox asserts that the arguments raised in his petition each fit within an exception to the time
bar under either RCW 10.73.090 or RCW 10.73.100 and thus they must be reviewed on their
merits. Fox is correct that his claim of facial invalidity, were it meritorious, would allow relief as
to that claim. Fox is also correct in that his argument that his sentence violates double jeopardy
falls under the exception to the time bar under RCW 10.73.100(3). However, despite his
1
After filing its brief responding to Fox’s petition, the State moved this court to stay the
proceedings pending a decision of an analogous issue in State v. Robinson, 8 Wn. App. 2d 629,
439 P.3d 710 (2019). We granted the State’s motion and lifted the stay after Division I filed its
decision in Robinson. We then directed the parties to file supplemental briefing addressing
Robinson, and we appointed counsel for Fox.
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No. 52392-2-II
characterization of his remaining claim as one involving the trial court’s sentencing jurisdiction,
this claim—that his exceptional sentence was clearly excessive—does not fall within an exception
to the time bar under RCW 10.73.100. Consequently, his petition is mixed, and we are required to
dismiss his petition. See In re Pers. Restraint of Thomas, 180 Wn.2d 951, 953, 330 P.3d 158(2014); see also In re Pers. Restraint of Stenson, 150 Wn.2d 207, 220, 76 P.3d 241 (2003).
I. LEGAL PRINCIPLES
RCW 10.73.090 provides that a petitioner may not file a collateral challenge more than one
year after a facially valid judgment and sentence is entered by a court of competent jurisdiction.
The two preconditions contained within RCW 10.73.090, “(1) that the judgment and sentence be
‘valid on its face’ and (2) that the judgment and sentence be ‘rendered by a court of competent
jurisdiction,’” are treated as exceptions to the time bar. In re Pers. Restraint of Adams, 178 Wn.2d
417, 424, 309 P.3d 451 (2013) (quoting RCW 10.73.090(1)).
RCW 10.73.100 is a related statute that enumerates additional exceptions to the time bar.
Id. The exceptions codified in RCW 10.73.100 are an exhaustive list. Id.The time limit specified in RCW 10.73.090 does not apply to a petition that is based
solely on one or more of the following grounds:
(1) Newly discovered evidence, if the defendant acted with reasonable
diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was
unconstitutional on its face or as applied to the defendant's conduct;
(3) The conviction was barred by double jeopardy under Amendment V of
the United States Constitution or Article I, section 9 of the state Constitution;
(4) The defendant pled not guilty and the evidence introduced at trial was
insufficient to support the conviction;
(5) The sentence imposed was in excess of the court's jurisdiction; or
(6) There has been a significant change in the law, whether substantive or
procedural, which is material to the conviction, sentence, or other order entered
in a criminal or civil proceeding instituted by the state or local government, and
either the legislature has expressly provided that the change in the law is to be
applied retroactively, or a court, in interpreting a change in the law that lacks
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No. 52392-2-II
express legislative intent regarding retroactive application, determines that
sufficient reasons exist to require retroactive application of the changed legal
standard.
RCW 10.73.100 (emphasis added).
When a petition for collateral relief raises one or more claims that fall within one of the
statutory exceptions to the time bar under RCW 10.73.100, but also raises one or more claims that
do not fit within one of RCW 10.73.100's exceptions, that petition is considered a “mixed petition”
and must be dismissed. In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 702, 72 P.3d 703(2003). Because RCW 10.73.090 lists two preconditions to applicability of the time bar, “[o]nly
those claims which satisfy the conditions of RCW 10.73.090, namely claims which challenge the
facial validity of the judgment and sentence or which challenge the jurisdiction of the court, may
be addressed when we are presented with a mixed petition.” Stenson, 150 Wn.2d at 220. A claim
of facial invalidity or lack of jurisdiction does not present “an end run around the time limit,” that
opens the door to otherwise untimely claims. In re Pers. Restraint of Coats, 173 Wn.2d 123, 141,
267 P.3d 324 (2011).
II. APPLICATION
A. SENTENCING JURISDICTION UNDER RCW 10.73.100(5)
Although Fox characterizes his claim regarding an excessive sentence in a manner that
would ostensibly fit within RCW 10.73.100(5) by his use of the phrase “in excess of the court's
jurisdiction,” the argument in support of his claim does not implicate the trial court's jurisdiction.
PRP at 5. Jurisdiction within the meaning of RCW 10.73.100(5) refers to personal and subject
matter jurisdiction. In re Pers. Restraint of Richey, 162 Wn.2d 865, 872, 175 P.3d 585 (2008).
Subject matter jurisdiction turns on whether a court has authority to consider the type of
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No. 52392-2-II
controversy involved, and jurisdiction is not gained or lost by a court's interpretation of the law.
In re Pers. Restraint of Vehlewald, 92 Wn. App. 197, 201-02, 963 P.2d 903 (1998). Therefore,
“[a] sentence is not jurisdictionally defective merely because it is in violation of a statute or is
based on a misinterpretation of a statute.” Richey, 162 Wn.2d at 872.
Here, Fox argues that the trial court lacked a factual basis to support imposing his
exceptional sentence as required under RCW 9.94A.535 because his conduct was no more serious
than that involved in other assault cases. He contends that the trial court should not have accepted
his stipulation to a sentence that was “clearly excessive.” PRP at 9.
Accordingly, Fox's contentions are more precisely framed as a challenge to the trial court's
statutory authority to impose a given sentence rather than a jurisdictional challenge under RCW
10.73.100(5). Because this claim regarding his sentence does not fit within another exception to
the time bar under RCW 10.73.100, his petition is mixed. This court cannot consider Fox's double
jeopardy claim on its merits although that claim fits within the exemption to the time bar under
RCW 10.73.100(3). See Thomas, 180 Wn.2d at 953.
B. FACIAL INVALIDITY
Fox also argues that his sentence was facially invalid because the exceptional sentence was
not supported by adequate findings. While we may consider claims alleging facial invalidity even
where we are presented with a mixed petition2, Fox’s facial invalidity claim fails on its merits.
A judgment is facially valid “so long as it did not exceed the sentencing court’s statutory
authority.” In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d 759, 767, 297 P.3d 51 (2013). Lack
of adequate factual findings in a judgment and sentence may render that judgment and sentence
2
Stenson, 150 Wn.2d at 220.
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No. 52392-2-II
facially invalid and thus the time bar in RCW 10.73.090 would not apply to that claim. In re Pers.
Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013). A trial court is permitted, under
RCW 9.94A.535(2)(a), to impose an exceptional sentence without additional factual findings by a
jury when the parties have stipulated to an exceptional sentence.
Here, the trial court included a finding on Fox's judgment and sentence stating that it
imposed the exceptional sentence because both “the defendant and state stipulate that justice is
best served by the imposition of an exceptional sentence beyond the standard range.” Clerk’s
Papers at 24. Fox also waived his right to have a jury find aggravating factors as part of his plea
agreement, acknowledging that he was doing so to avoid a mandatory life sentence as a persistent
offender. Given that RCW 9.94A.535(2)(a) allows a trial court to impose a stipulated sentence
without factual support, and based solely on the defendant’s stipulation, Fox’s facial invalidity
claim fails.
CONCLUSION
Fox’s judgment and sentence is not facially invalid. And because at least one of the grounds
that Fox raises in his Petition does not fall within one of the exceptions under RCW 10.73.100,
Fox’s petition is mixed. Accordingly, we dismiss Fox’s petition.
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.
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CRUSER, J.
We concur:
MAXA, P.J.
VELJACIC, J.
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