Opinion
No. 26598-6-III.
September 18, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-1-02289-7, Michael P. Price, J., entered October 18, 2007.
UNPUBLISHED OPINION
James H. Locklear contends the offender score calculated for his criminal convictions is incorrect. We agree, and remand for resentencing.
FACTS
In March 2004, Mr. Locklear pleaded guilty to possessing heroin with intent to deliver, and first degree unlawful possession of a firearm. Mr. Locklear initially objected to two California offenses listed as criminal history. He restated his objections at his sentencing. Both the State and Mr. Locklear's counsel agreed that the offender score was "at least" 9 and "potentially more." Report of Proceedings at 4. Based on the offender score of 9, the court determined that Mr. Locklear was subject to 108-144 months for possession of a controlled substance and 87-116 months for unlawful possession of a firearm. The court sentenced Mr. Locklear to concurrent terms of confinement, the longest being 120 months. The judgment and sentence lists:
Crime Date of Crime Place of conviction Date of Sentence Forgery 3/29/88 Spokane Co, WA 11/23/88 Theft 2 3/24/88 Spokane Co, WA 11/23/88 Assault 2 5/4/80 King Co, WA 9/19/80 w/Dead Weapon Burglary 1 5/4/80 King Co, WA 9/19/80 w/Dead Weapon Dyer Act 9/10/70 Fed. N. Dist. CA 9/18/70 *Bank Robbery Fed. N. Dist. CA 9/29/64 *Burglary San Diego Co, CA 9/20/63 *Bank Robbery San Francisco, CA 9/29/64 Clerk's Papers (CP) at 21-22. Handwritten next to the last three convictions are the notations "obj." CP at 22.On December 6, 2004, Mr. Locklear filed a CrR 7.8 motion seeking to correct the judgment and sentence, based on a miscalculated offender score. The superior court transferred the matter here as a personal restraint petition (PRP). This court dismissed the petition, concluding that under the drug sentencing grid found at RCW 9.94A.517, the alleged error in the offender score would not result in any reduction of Mr. Locklear's standard range sentence. However, RCW 9.94A.517 did not go into effect until July 1, 2004. See Laws of Washington, 2002, ch. 290, § 31. Mr. Locklear's crimes were committed on January 21, 2003.
In September 2007, Mr. Locklear unsuccessfully filed another CrR 7.8 motion in superior court, raising the same issues. This appeal followed.
ANALYSIS
The issue is whether Mr. Locklear was sentenced using an incorrect offender score. We agree that his offender score is incorrect.
We review a sentencing court's calculation of an offender score de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003). While the State points out that this court already reviewed and addressed the issues Mr. Locklear now raises when it dismissed his PRP, we have the duty and power to correct an erroneous sentence upon its discovery. State v. Smissaert, 103 Wn.2d 636, 639, 694 P.2d 654 (1985).
This court's decision dismissing Mr. Locklear's PRP relied upon a statute not yet in effect when he committed his offences. RCW 10.73.090(1) states that no petition or motion for collateral attack on a sentence may be filed more than one year after the final judgment is entered. The time limit specified in RCW 10.73.090, however, does not apply to a petition or motion that is based on the ground that "[t]he sentence imposed was in excess of the court's jurisdiction." RCW 10.73.100 (5).
"A sentencing court acts without statutory authority under the Sentencing Reform Act of 1981 [chapter 9.94A RCW] when it imposes a sentence based on a miscalculated offender score." In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997). We can revisit a sentencing issue if the interests of justice require. See In re Pers. Restraint of Taylor, 105 Wn.2d 683, 686-87, 717 P.2d 755 (1986). "A sentence based on a miscalculated upward offender score is in excess of statutory authority and generally may be challenged at any time." In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 874, 123 P.3d 456 (2005) (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002)).
Here, the record shows that two, pre-1986 convictions were served concurrently but were counted separately in Mr. Locklear's offender score and that Mr. Locklear timely objected to the inclusion of the California convictions. Even counting all the convictions listed in the judgment and sentence, the total is eight convictions, not nine plus. "The defendant cannot agree to a sentence in excess of that which is statutorily authorized." Cadwallader, 155 Wn.2d at 874 (citing Goodwin, 146 Wn.2d at 876). Further, review of Mr. Locklear's prior PRP was based upon the erroneous belief that the drug sentencing grid in RCW 9.94A.517 applied.
Given all, we vacate Mr. Locklear's sentence and remand to allow a proper offender score calculation.
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.
Kulik, A.C.J. and Sweeney, J., concur.