Personal Restraint Petition Of John Robert Anderson ( 2015 )

FILED
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2 JUL 28
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Matter of the Personal Restraint No. 46826 -3 -II
Petition of
JOHN ROBERT ANDERSON,
Petitioner.
UNPUBLISHED OPINION
JOHANSON, C. J. — John Anderson seeks relief from personal restraint imposed following
his convictions of third degree assault (domestic violence) and tampering with a witness ( domestic
violence). He claims that his restraint is unlawful because his judgment and sentence includes a
term of confinement combined with his term of community custody that exceeds the statutory
maximum for his offense. We agree, grant the petition in part, and remand for correction of
petitioner' s judgment and sentence.
We do not address Anderson' s claims that the sentencing court wrongly imposed domestic
violence perpetrator' s treatment and substance abuse treatment because Anderson filed his petition
No. 46826 -3 -II
more than one year after his judgment and sentence became final and no exception to the one- year
time limit set out in RCW 10. 73. 100 applies.' We deny these claims as untimely.
In In re Personal Restraint of Coats, 173 Wash. 2d 123, 140- 41, 267 P.3d 324 ( 2011), our
Supreme Court explained that a petitioner making a facial invalidity claim may not use that claim
to raise otherwise untimely issues related to the fairness of his trial: " A claim that the judgment is
not valid on its face may not be used to make an end run around the time limit and a personal
restraint petition." Id. at 141.
A claim of facial invalidity is not, however, subject to the one- year time limit on collateral
attacks. In re Pers. Restraint of Stoudmire, 141 Wash. 2d 342, 351, 5 P.3d 1.240 ( 2000). Therefore,
we consider petitioner' s challenge to the length of his sentence.
A term of confinement combined with a term of community custody that exceeds the
statutory maximum for an offense is an illegal sentence. State v. Boyd, 174 Wash. 2d 470, 473, 275
P.3d 321 ( 2012). In the context of personal restraint petitions, showing that the sentencing court
imposed a sentence in excess of its statutory authority demonstrates facial invalidity. Coats, 173
Wash. 2d at 136. It is the trial court' s duty to correct such a sentence if a defendant was sentenced
52;
after RCW 9. 94A. 701( 9) became effective on July 26, 2009. See Laws of 2009, ch. 375, §
Petitioner' s judgment and sentence was final on February 23, 2013. RCW 10. 73. 090( 3)( a).
When petitioner filed his. CrR 7. 8 motion in superior court on September 26, 2014, more than one
year had elapsed. The superior court transferred petitioner' s motion to this court for consideration
as a personal restraint petition.
2
On the 26, 2009 date, the RCW 9. 94A. 701 subsection was number ( 8). A
July effective relevant
subsequent amendment in 2010 changed subsection (8) to subsection (9), which was the subsection
number in effect when petitioner was sentenced.
2
No. 46826 -3 -II
Boyd, 174 Wash. 2d at 473. As noted above, petitioner was sentenced in 2013 so RCW 9. 94A.701( 9)
applies here.
The sole remedy for a sentencing error that renders a judgment and sentence facially invalid
is correction of the judgment and sentence. In re Pers. Restraint of Shively, 180 Wash. 2d 28, 30,
320 P.3d 1107 ( 2014). Accordingly, we grant this petition in part and remand for correction of
petitioner' s judgment and sentence.
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. 04.0,
it is so ordered.
1 JHANSON, C. J.
We concur:
SUTTON, J.
3