In the Matter of the Personal Restraint of: Christopher Zoey Schwarzbach ( 2022 )

FILED
JANUARY 13, 2022
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
In the Matter of the Personal Restraint of: ) No. 38128-5-III
)
CHRISTOPHER ZOEY SCHWARZBACH, ) UNPUBLISHED OPINION
)
Petitioner. )
PENNELL, C.J. — Christopher Schwarzbach has filed a petition for relief from
personal restraint imposed following his 2019 conviction in Klickitat County for second
degree burglary. In November 2019, Mr. Schwarzbach pleaded guilty to second degree
burglary, and the trial court imposed a standard range sentence of 51 months of
confinement based on an offender score of nine. Mr. Schwarzbach’s offender score
included three Oregon felony convictions for possession of controlled substances. In
February 2021, the Washington Supreme Court decided State v. Blake, 197 Wn.2d 170,
173, 481 P.3d 521 (2021), holding that Washington’s possession of a controlled substance
statute, former RCW 69.50.4013 (2017), violated the due process clauses of the state and
federal constitutions, 1 and was therefore void. Mr. Schwarzbach subsequently filed a
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WASH. CONST. art. I, § 3; U.S. CONST. amend. XIV.
No. 38128-5-III
In re Pers. Restraint of Schwarzbach
CrR 7.8 motion for relief from judgment with the superior court that sought resentencing
pursuant to Blake. The superior court determined Mr. Schwarzbach’s motion was time-
barred under RCW 10.73.090, and transferred the motion to this court pursuant to
CrR 7.8(c)(2) as a personal restraint petition. In its response to the personal restraint
petition, the State concedes Mr. Schwarzbach is entitled to resentencing for the
recalculation of his offender score without the Oregon convictions for possession of a
controlled substance.
For purposes of offender score calculations, the Sentencing Reform Act of 1981,
chapter 9.94A RCW, provides that “[o]ut-of-state convictions for offenses shall be
classified according to the comparable offense definitions and sentences provided by
Washington law.” RCW 9.94A.525(3). However, “a prior conviction [that] has been
previously determined to have been unconstitutionally obtained or which is
constitutionally invalid on its face may not be considered” in a defendant’s offender
score. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 713 P.2d 796 (1986).
Thus, Blake requires remand for resentencing to recalculate an offender score that
does not include the out-of-state convictions for possession of a controlled substance
because those crimes were not comparable to any valid Washington crime at the time
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No. 38128-5-III
In re Pers. Restraint of Schwarzbach
Mr. Schwarzbach was sentenced. State v. Markovich, 19 Wn. App. 2d. 157, 173-74, 492
P.3d 206 (2021), review denied, No. 100204-1 (Wash. Jan. 5, 2022).
Based on our own review of Mr. Schwarzbach’s petition, and the State’s
concession, we grant the personal restraint petition and remand to the superior court
for resentencing in accordance with Blake.
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.
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