Personal Restraint Petition Of Jason Ross Burns ( 2015 )

FILED •
COURT OF APPEALS
DIVISION II
2015 JAN 27 Al 8: 50
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re Personal Restraint Petition of No. 45851 -9 -II
JASON ROSS BURNS,
Petitioner.
UNPUBLISHED OPINION
SUTTON, J. — Jason R. Burns seeks relief from personal restraint imposed following his
conviction of unlawful sale of a controlled substance ( heroin) with a special verdict finding that
he committed his crime within 1, 000 feet of a school bus stop. Burns asserts that the sentencing
court exceeded its jurisdiction by imposing a sentence of 120 months of incarceration and 9 to 12
months of community custody. Specifically, Burns contends that the statutory maximum penalty
for his offense is 60 months, and he requests this court to remand for resentencing to reduce his
incarceration term to 60 months and his community custody term to 0.
We disagree with Burns' s contention that the statutory maximum for his offense is 60
months because under RCW 69. 50. 435' s doubling provision, which provision the sentencing
court properly applied here, the statutory maximum for Burns' s offense is 120 months. But we
No. 45851 -9 -II
agree with Burns that his community custody term, when combined with his incarceration term,
exceeds the statutory maximum penalty for his offense. We, thus, deny Burns' s petition in part,
grant his petition in part, and remand to correct Burns' s sentence by reducing his community
custody term to 0.
FACTS
The facts underlying Burns' s conviction have been set forth in our unpublished opinion
from his direct appeal and need not be repeated here. State v. Burns, noted at 166 Wash. App.
1018, review denied, 174 Wash. 2d 1013 ( 2012). Following Burns' s conviction for unlawful sale of
a controlled substance ( heroin) with a special verdict finding that Burns committed his offense
within 1, 000 feet of a school bus stop, the trial court sentenced Burns to 120 months of
incarceration) and 9 to 12 months of community custody.
ANALYSIS
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.
A personal restraint petition is a collateral attack on a judgment. RCW 10. 73. 090( 2).. Burns
filed this petition on January 14, 2014, more than one year after his judgment and sentence
1 Burns' s judgment and sentence shows that the trial court sentenced Burns to an exceptional
downward sentence of 96 months of incarceration plus a mandatory 24 months of incarceration
for committing his crime within 1, 000 feet of a school bus stop. A notation on Burns' s judgment
and sentence indicates that the trial court' s sole basis for reducing Burns' s base sentence was to
accommodate the imposition of his mandatory 24 -month school zone enhancement without
exceeding the 10 -year statutory maximum penalty for the offense.
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became final on August 16, 2012, the date we issued our mandate disposing of his direct appeal.
RCW 10. 73. 090( 3)( b). Therefore, Burns' s petition must be dismissed as untimely unless he can
show that ( 1) RCW 10. 73. 090( 1) does not apply because his judgment and sentence is facially
invalid or not rendered by a court of competent jurisdiction, or that (2) each of his claims falls
under one or more exception to the time bar enumerated in RCW 10. 73. 100. In re Pers.
Restraint of Hankerson, 149 Wash. 2d 695, 702 -03, 72 P.3d 703 ( 2003). Burns contends that RCW
10. 73. 100( 5)' s exception to the time bar applies to his petition because the sentencing court
exceeded its jurisdiction by imposing a sentence in excess of the statutory maximum penalty for
his offense.
Burns asserts that the statutory maximum penalty for his offense is 60 months. We
disagree. Burns was convicted of violating RCW 69. 50.410, which statute provides in relevant
part,
1) Except as authorized by this chapter it is a class C felony for any person to sell
for profit any controlled substance ... classified in Schedule I, RCW 69. 50. 204,{21
except leaves and flowering tops of marihuana.
2)( a) Any person convicted of a violation of subsection ( 1) of this section
shall receive a sentence of not more than five years in a correctional facility of the
department of social and health services for the first offense.
Although RCW 69. 50.410(2)( a) states that the maximum penalty for a first offense is five
years, RCW 69. 50.435 provides in relevant part,
1) Any person who violates RCW 69. 50. 401 by ... selling ... a controlled
substance listed under RCW 69. 50. 401... .
c) Within one thousand feet of a school bus route stop designated by the
school district;
2 RCW 69.50. 204( b)( 11) classifies heroin as a schedule I controlled substance.
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No. 45851 -9 -II
may be punished ... by imprisonment of up to twice the imprisonment otherwise
authorized by this chapter.
In State v. Blade, 126 Wn. App. 174, 180, 107 P.3d 775 ( 2005), we held, " The doubling
provision in RCW 69. 50.435 defines a new maximum penalty for the manufacture, sale,
delivery, or possession with the intent to manufacture, sell, or deliver a controlled substance if
the crime is committed in certain locations, including within 1, 000 feet of a school bus stop."
Here, the jury found by special verdict that Burns committed his offense within 1, 000 feet of a
school bus route stop, thus triggering RCW 69. 50.435( 2)( a)' s doubling provision. Therefore, the
statutory maximum penalty for Burns' s violation of RCW 69. 50.410 is 120 months not 60
months as Burns asserts. Accordingly, the sentencing court did not exceed its jurisdiction by
sentencing Burns to 120 months of incarceration.
Burns argues, and the State concedes, however, that the sentencing court exceeded its
jurisdiction by sentencing Burns to 120 months of incarceration plus 9 to 12 months of
community custody. We agree.
RCW 9. 94A.701( 9) provides,
The term of community custody specified by this section shall be reduced by the
court whenever an offender' s standard range term of confinement in combination
with the term of community custody exceeds the statutory maximum for the crime
as provided in RCW 9A.20. 021.
Under RCW 9. 94A.701( 9), the sentencing court here was required to reduce Burns' s community
custody term to 0 so that his term of confinement when combined with his community custody
term would not exceed the statutory maximum penalty for his offense; the sentencing court' s
notation that " under no circumstances shall the total term of confinement plus the term of
community custody actually served exceed the statutory maximum for each offense" was not
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sufficient to comply with RCW 9. 94. 701( 9). Am. Pet., Ex. A. See State v. Boyd, 174 Wash. 2d
470, 472, 275 P.3d 321 ( 2012) ( "[ F] ollowing the enactment of [ RCW 9. 94. 701( 9)], the ``Brooks[3'
notation' procedure no longer complies with statutory requirements. ").
Accordingly, we deny Burns' s petition in part, grant his petition in part, and remand with
directions for the trial court to correct Burns' s sentence by reducing his community custody term
to 0.
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.
1
SUTTON, J.
We concur:
JHANSON, C.
MAXA,
3 In re Pers. Restraint ofBrooks, 166 Wash. 2d 664, 211 P.3d 1023 ( 2009).
5