State Of Washington v. Ronald Mcneal ( 2021 )


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  •                                                                                                Filed
    Washington State
    Court of Appeals
    Division Two
    April 20, 2021
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                             No. 52091-5-II
    Respondent,
    v.
    RONALD WILLIAM MCNEAL,                                    UNPUBLISHED OPINION
    Appellant.
    WORSWICK, J. — Ronald McNeal appeals his amended judgment and sentence for
    unlawful possession of a controlled substance—methamphetamine, and unlawful delivery of a
    controlled substance—methamphetamine. In 2016, we considered McNeal’s prior CrR 7.8
    motion as a personal restraint petition (PRP) and remanded the case for correction of scrivener’s
    errors. The trial court issued an order correcting those errors, but left intact previously imposed
    discretionary legal financial obligations (LFOs). McNeal now argues, and the State concedes,
    that these discretionary LFOs are no longer authorized. In a Statement of Additional Grounds
    (SAG) for Review, McNeal also argues that he was denied due process when the trial court
    denied him a hearing to review his offender score and criminal history at the hearing to correct
    the scrivener’s errors. We hold that McNeal’s due process rights were not violated.
    After filing our opinion in this case, McNeal filed a “Motion to Vacate.” He argues that
    in light of our Supreme Court’s holding in State v. Blake,1 we should vacate his unlawful
    1
    State v. Blake, No. 96873-0, slip op. at 31 (Wash. Feb. 25, 2021),
    http:www.courts.wa.gov/opinions/pdf/968730.pdf. There, our Supreme Court held that RCW
    69.50.4013(1)—the simple drug possession statue—violates due process.
    No. 52091-5-II
    possession of a controlled substance conviction and remand for resentencing. The State
    concedes that McNeal’s drug possession conviction must be vacated. We accept McNeal’s
    motion as a supplemental brief under RAP 10.2(h) and accept the State’s concessions.2
    Accordingly, we affirm McNeal’s conviction for unlawful delivery of a controlled substance and
    remand to the trial court to vacate his conviction for unlawful possession of a controlled
    substance and to resentence McNeal.
    FACTS
    In 2012, Ronald McNeal was convicted of one count of unlawful possession of a
    controlled substance—methamphetamine, and one count of unlawful delivery of a controlled
    substance—methamphetamine. At the time of his conviction, McNeal’s criminal history
    included second degree theft, three felony violations of the Uniform Controlled Substances Act
    (UCSA),3 unlawful possession of a firearm, and three counts of driving with license suspended in
    the third degree (DWLS). The judgment and sentence form listed Lewis County as the
    sentencing court for all three DWLS convictions.
    McNeal’s offender score was calculated as an 8, based on his criminal history and that he
    committed a current conviction while on community custody. The trial court sentenced him to a
    total of 144 months of confinement.
    At the time of McNeal’s first sentencing, the trial court found him indigent for the
    purposes of seeking review at public expense and providing an attorney for his appeal.
    2
    Under RAP 10.1(h) we may in a particular case, on our own motion or on motion of a party,
    authorize or direct the filing of briefs on the merits.
    3
    Ch. 69.50 RCW.
    2
    No. 52091-5-II
    Nonetheless, the trial court imposed the following LFOs: $200 criminal filing fee, $2,400 court
    appointed attorney fees, $3,000 for violating the UCSA, $500 for the Lewis County drug
    enforcement fund, and a $500 mandatory crime victim assessment, for a total of $6,600.
    Approximately three weeks later, the trial court entered an order amending McNeal’s judgment
    and sentence to add an additional $883 for court appointed investigative services.
    McNeal filed a direct appeal in 2012, and we affirmed his conviction. State v. McNeal,
    No. 43290-1-II, slip op. at 1 (Wash. Ct. App. Nov. 26, 2013) (unpublished),
    https://www.courts.wa.gov/opinions/pdf/D2%2043290-1-
    II%20%20Unpublished%20Opinion.pdf. After we affirmed McNeal’s conviction and mandated
    the case, the trial court entered an order imposing additional LFOs of $72 .00 “to the Lewis
    County Prosecuting Attorney’s Office” and $3,680.59 “to Office of Public Defense Appellate
    Indigent Defense Fund.” Clerk’s Papers at 49.
    In 2016 McNeal filed a CrR 7.8(b) motion to correct the judgment and sentence. The
    trial court found McNeal’s motion time-barred under RCW 10.73.090(1),4 and transferred
    McNeal’s motion to this court for consideration as a personal restraint petition (PRP). McNeal
    argued that the trial court improperly calculated his offender score and that the convictions listed
    for DWLS in Lewis County did not exist. He argued that because the convictions for DWLS did
    not exist, his offender score was invalid on its face because it erroneously included washed-out
    offenses.
    4
    RCW 10.73.090(1) provides, “No petition or motion for collateral attack on a judgment and
    sentence in a criminal case may be filed more than one year after the judgment becomes final if
    the judgment and sentence is valid on its face and was rendered by a court of competent
    jurisdiction.”
    3
    No. 52091-5-II
    We issued an order dismissing the petition, but remanded the case for correction of
    scrivener’s errors in September 2017. We held that McNeal’s PRP was time-barred under RCW
    10.73.090(1) because it was filed more than one year after his judgment and sentence became
    final, explaining that the State had demonstrated that McNeal’s DWLS convictions did exist, just
    not in Lewis County.5 The State conceded that McNeal’s original judgment and sentence
    contained scrivener’s errors, which listed two of his DWLS convictions as arising from Lewis
    County, when in fact they were Thurston County convictions. Thus, we remanded McNeal’s
    judgment and sentence to the trial court for correction of these scrivener’s errors on the DWLS
    convictions.
    The State filed a motion and affidavit to amend the judgment and sentence for the
    scrivener’s errors, asking the trial court to change “Lewis” to “Thurston” on two of McNeal’s
    DWLS convictions. The motion came before the trial court in February 2018. After the court
    made its decision, McNeal declined to sign the order amending the judgment and sentence.
    McNeal argued he had not seen proof that the discrepancies were scrivener’s errors or that the
    cases were from Thurston County. The court explained that it had no discretion over the matter,
    that it had to follow the order to amend as instructed by the Court of Appeals, and that McNeal
    was not entitled to an attorney for the motion proceedings. McNeal appealed the amended
    judgment and sentence and we issued an opinion. State v. McNeal, No. 52091-5-II, slip op.
    (Wash. Ct. App. Feb. 17, 2021), https://www.courts.wa.gov/opinions/pdf/D2%2052091-5-
    II%20Unpublished%20Opinion.pdf.
    5
    Before our Supreme Court issued its decision in Blake, we held that McNeal’s judgment and
    sentence became final on January 15, 2014, following the resolution of his direct appeal. He
    filed his last PRP in December of 2016.
    4
    No. 52091-5-II
    McNeal then filed a “Motion to Vacate,” arguing that his conviction for possession of
    methamphetamine be vacated because our Supreme Court recently held that RCW69.50.4013 is
    unconstitutional. The State concedes the issue. We accept McNeal’s motion as a supplemental
    brief under RAP 10.1(h) and accept the State’s concession.
    ANALYSIS
    I. LEGAL FINANCIAL OBLIGATIONS
    McNeal argues, and the State concedes, that the trial court erroneously imposed
    discretionary legal financial obligations despite McNeal’s indigency. We agree.
    McNeal’s judgment and sentence was final in 2014. However, here the State makes no
    timeliness argument and concedes that we should remand to strike McNeal’s discretionary legal
    financial obligations. The State notes that we should not remove McNeal’s $500 mandatory
    crime victim assessment. We accept the State’s concession.
    II. STATEMENT OF ADDITIONAL GROUNDS
    McNeal filed a SAG in which he makes additional claims. He claims that he was denied
    due process when the trial court refused to hold a hearing to examine the scrivener’s errors, that
    such a hearing would reveal some of his convictions washed out, and that his offender score was
    calculated incorrectly because his DWLS convictions were unconstitutional. Although his SAG
    claims fail, McNeal can address his offender score at his resentencing.
    Generally, where a trial court has no discretion as to the actions it can take on remand,
    there is nothing for us to review on appeal. In re Pers. Restraint of Sorenson, 
    200 Wn. App. 692
    ,
    699, 
    403 P.3d 109
     (2017). Additionally, a SAG may not contain or refer to documents outside
    the record on appeal. RAP 10.10(c).
    5
    No. 52091-5-II
    McNeal is barred from raising these arguments here because the previous remand was
    only for scrivener’s errors and the court below had no discretion over the amended judgment and
    sentence. Moreover, our review is limited to the record on appeal. Accordingly, the claims in
    McNeal’s SAG fail. However, McNeal can address recalculation of his offender score at his
    resentencing.
    III. SUPPLEMENTAL BRIEF
    McNeal argues in his supplemental brief that his conviction for possession of a controlled
    substance should be vacated on the grounds that RCW 69.50.4013(1) is unconstitutional. We
    agree.
    Eight days after we entered our initial decision in this case, the Supreme Court decided
    State v. Blake, No. 96873-0, slip op at 1 (February 25, 2021). In Blake, the Supreme Court held
    that Washington’s strict liability drug possession statute, RCW 69.50.4013(1), violates state and
    federal due process clauses and therefore is void. Blake, No. 96873-0, slip op. at 31.
    A defendant cannot be convicted based on a void statute. See State v. Rice, 
    174 Wn.2d 884
    , 893, 
    279 P.3d 849
     (2012); see also State v. Carnahan, 
    130 Wn. App. 159
    , 164, 
    122 P.3d 187
     (2005) (vacating a conviction that was based on a statute that the Supreme Court held was
    unconstitutional). Therefore, McNeal’s conviction for possession of methamphetamine must be
    vacated.
    IV. CONCLUSION
    We affirm McNeal’s conviction for unlawful delivery of a controlled substance. We
    accept the State’s concessions that the trial court erred in imposing discretionary LFOs on
    McNeal and that McNeal’s conviction for possession of methamphetamine was based on an
    6
    No. 52091-5-II
    unconstitutional statute and is therefore void. Accordingly, we remand to the trial court to vacate
    McNeal’s conviction for possession of methamphetamine and to resentence McNeal. At
    resentencing, the trial court should not impose discretionary legal financial obligations.
    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.
    ___________________________
    Worswick, J.
    We concur:
    _____________________________
    Lee, C.J.
    _____________________________
    Glasgow, J.
    7
    

Document Info

Docket Number: 52091-5

Filed Date: 4/20/2021

Precedential Status: Non-Precedential

Modified Date: 4/20/2021