Personal Restraint Petition Of Mazzar Gerald Robinson ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 83304-9-I
)
Respondent, ) DIVISION ONE
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v. ) UNPUBLISHED OPINION
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MAZZAR GERALD ROBINSON, )
)
Appellant. )
)
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In the Matter of the Personal Restraint )
of: )
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MAZZAR GERALD ROBINSON, )
)
Petitioner. )
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HAZELRIGG, J. — In 2016, Mazzar Robinson was sentenced as a persistent
offender to life in prison without the possibility of release based in part on a prior
conviction for robbery in the second degree (Robbery 2). Robinson argues that the
trial court erred by correcting the original judgment and sentence (J&S) on a nunc
pro tunc basis when he was resentenced in 2019 after direct appeal. In response,
the State points out that Robinson is entitled to resentencing in light of State v.
Blake1 and a recent amendment to the Sentencing Reform Act of 19812 (SRA).
1 197 Wn.2d 170, 481 P.3d 521 (2021).
2 Ch. 9.94A RCW.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 83304-9-I/2
We agree, remand for resentencing and further direct the trial court to correct the
record as necessary to reflect that those corrections were not nunc pro tunc in
nature.
In a statement of additional grounds for review, Robinson contends that the
attorney who represented him at his 2019 resentencing was ineffective for failing
to request a stay of proceedings in light of then-pending legislation. We disagree.
Further, in a consolidated personal restraint petition (PRP), Robinson raises
additional challenges to his convictions. Because Robinson fails to establish an
arguable basis for collateral relief in law or fact given the constraints of a PRP, we
dismiss the petition.
FACTS
In January 2014, the State charged Robinson with murder in the first degree
(Count I), conspiracy to commit murder in the first degree (Count II), burglary in
the first degree (Count III), attempted robbery in the first degree (Count IV), and
unlawful possession of a firearm in the first degree (Count V) by amended
information. A jury found him guilty as charged.
The trial court sentenced Robinson in September 2016. Robinson had two
prior most serious, or “strike,” offenses, including a Robbery 2 conviction, so the
court determined that Robinson was a persistent offender based on his criminal
history and Counts I through IV, each of which was also a most serious offense.3
Consequently, the court imposed concurrent sentences of life without the
3Subject to some conditions, a persistent offender is an person who is convicted of a most
serious offense and who previously was convicted as of most serious offenses on at least two
separate occasions. RCW 9.94A.030(37)(a).
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possibility of release on each of those counts,4 and 116 months in prison on Count
V (unlawful possession of a firearm).
Robinson appealed. He argued among other things that the attempted
robbery conviction (Count IV) violated double jeopardy. See State v. Rowland, No.
49444-2-II, slip op. at 24 (Wash. Ct. App. Sept. 25, 2018) (unpublished)
https://www.courts.wa.gov/opinions/pdf/D2%2049444-2-
II%20Unpublished%20Opinion.pdf.5 We agreed and remanded to the trial court to
vacate that conviction. Id. slip op. at 28.
The trial court resentenced Robinson in April 2019. It entered an order
vacating Count IV, as well as a new J&S omitting that count (2019 J&S). It
expressly made both the order and the 2019 J&S nunc pro tunc to September 15,
2016, the date of Robinson’s original sentencing. Robinson appealed. While the
appeal was pending, Robinson filed a timely PRP which raised a number of other
challenges. Division Two of this court consolidated the petition with Robinson’s
appeal before determining whether the petition raised non-frivolous issues.6
4 “Notwithstanding the statutory maximum sentence. . . , a persistent offender shall be
sentenced to a term of total confinement for life without the possibility of release.” RCW 9.94A.570.
5 We cite this unpublished opinion under GR 14.1(c), which provides that we may cite or
discuss unpublished opinions in our opinions if “necessary for a reasoned decision.” It is offered
here to provide the procedural and factual background for Robinson’s current appeal and PRP.
6 Both Robinson’s appeal and his PRP were originally filed in Division Two. After the parties
were informed that the appeal would be transferred to this division, the State filed a motion to either
opt out of the transfer or have the appeal and the petition consolidated. Division Two denied the
motion to opt out of the transfer but consolidated the two matters before transferring them to this
division.
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ANALYSIS
I. Nunc Pro Tunc Correction
Robinson contends that the trial court erred by making its 2019 corrections
to his J&S nunc pro tunc to his original sentencing date. The State responds by
pointing out and conceding that Robinson is entitled to resentencing in light of
recent legislation. Specifically, the SRA was amended in 2021 to provide, “In any
criminal case wherein an offender has been sentenced as a persistent offender,
the offender must have a resentencing hearing if a current or past conviction for
[Robbery 2] was used as a basis for the finding that the offender was a persistent
offender.” LAWS OF 2021, ch. 141 § 1(1), codified as RCW 9.94A.647(1). The
State also concedes that Robinson is entitled to resentencing in light of Blake, in
which our Supreme Court held that the statute criminalizing simple possession of
a controlled substance was unconstitutional. 197 Wn.2d at 195.
The SRA amendment and Blake apply to Robinson, whose persistent
offender status was based in part on a Robbery 2 conviction and whose offender
score included points for simple possession convictions. Accordingly, we accept
the State’s concessions and remand to the trial court to resentence Robinson
consistent with RCW 9.94A.647 and Blake.
The State asserts that a remand for resentencing moots Robinson’s
challenge to the nunc pro tunc nature of the trial court’s 2019 corrections, and
Robinson, who has not filed a reply brief, does not argue otherwise. Nevertheless,
we reach this issue to ensure that the trial court does not commit the same error
on remand and so that it can correct the record below. See State v. Deer, 175
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Wn.2d 725, 731 n.2, 287 P.3d 539 (2012) (reaching moot issue because “it may
arise on remand”); cf. Hous. Auth. of City of Paco and Franklin County v. Pleasant,
126 Wn. App. 382, 389, 109 P.3d 422 (2005) (“An issue is not moot if a court can
still provide effective relief.”).
“A nunc pro tunc order records ‘some prior act of the court which was
actually performed but not entered into the record at that time.’” State v. Nicholson,
84 Wn. App. 75, 78–79, 925 P.2d 637 (1996) (emphasis in original) (quoting State
v. Rosenbaum, 56 Wn. App. 407, 410–11, 784 P.2d 166 (1989)). “[A] nunc pro
tunc order is generally appropriate to correct only ministerial or clerical errors, not
judicial errors,” and “[a] trial court misuses its nunc pro tunc power and abuses its
discretion when it uses such an order to change its mind or rectify a mistake of
law.” State v. Hendrickson, 165 Wn.2d 474, 479, 198 P.3d 1029 (2009).
Here, the trial court’s 2019 corrections to Robinson’s J&S corrected a
mistake of law, i.e., the imposition of multiple punishments for the same offense in
violation of the prohibition on double jeopardy. See Rowland, No.49444-2-II, slip
op. at 24. Therefore, the trial court erred by making those corrections on a nunc
pro tunc basis. The State concedes as much, observing that the trial court’s use
of nunc pro tunc language “appears inappropriate.” And unless corrective action
is taken, the record below will suggest, inaccurately, that no punishment was ever
imposed for the later-vacated attempted robbery count. Accordingly, we direct the
trial court on remand to correct the record as necessary to reflect that its 2019
corrections to Robinson’s original J&S were not nunc pro tunc in nature.
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II. Ineffective Assistance of Counsel
In a statement of additional grounds for review, Robinson contends that the
attorney who represented him at his 2019 resentencing was ineffective for failing
to request a stay of proceedings in light of legislation that was pending at the time.
We disagree.
A defendant is entitled to effective counsel throughout their criminal
proceeding, including during the sentencing phase. State v. Tinkham, 74 Wn. App.
102, 109, 871 P.2d 1127 (1994); Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct.
1197, 51 L. Ed. 2d 393 (1977). We review a claim of ineffective assistance of
counsel de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000).
To succeed on an ineffective assistance claim, a defendant must show (1)
counsel’s performance was deficient, and (2) the deficient performance prejudiced
the defendant. Id. The defendant must make both showings to succeed. Id. at
409–10.
When Robinson was resentenced in April 2019, Senate Bill (SB) 5288 was
pending in the Legislature. See Bill History: SB 5288 - 2019-20, WASH. ST. LEG.,
https://app.leg.wa.gov/billsummary?BillNumber=5288&Year=2019. That bill,
which was later signed into law and became effective in July 2019, removed
Robbery 2 from the list of strike offenses. LAWS OF 2019, ch. 187 § 1. However,
unlike the later SRA amendment discussed above, SB 5288 did not apply to
Robinson. See State v. Jenks, 197 Wn.2d 708, 711, 487 P.3d 482 (2021) (holding
that SB 5288 was not retroactive and did not apply to defendant who committed
his third strike offense in 2014 even though his direct appeal was pending when
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SB 5288 became effective). Consequently, Robinson cannot show that he was
prejudiced by counsel’s failure to request a stay of the resentencing hearing
pending passage of SB 5288. See S.M., 100 Wn. App. at 410 (“Under the
prejudice prong, the defendant must show ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” (internal quotation marks omitted) (quoting State v. Lord, 117 Wn.2d
829, 883-84, 822 P.2d 177 (1991))). Robinson’s ineffective assistance claim fails.
III. Personal Restraint Petition
Robinson has filed a timely PRP raising three additional grounds for relief
which was consolidated with his appeal before transfer to this court.7 We now
conclude that the issues raised in Robinson’s petition are frivolous, and thus, his
petition must be dismissed.
A. Sidebars
Robinson argues that a new trial is required because the trial court held
multiple sidebar conferences without conducting a Bone-Club8 analysis. But
Robinson’s challenge to the sidebars was raised and rejected on its merits in
Robinson’s first appeal. See Rowland, No.49444-2-II, slip op. at 15–16. As
Division Two of this court explained in that appeal, a Bone-Club analysis is
required only when a sidebar (1) implicates the public trial right and (2) amounts
7 Robinson subsequently filed another PRP arguing that his conviction for Count II
(conspiracy to commit first degree murder) must be vacated. See In re Pers. Restraint of Robinson,
No. 55761-4-II, (Wash. Ct. App. Nov. 2, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2055761-4-II%20Unpublished%20Opinion.pdf. That
petition is not before us; it was resolved in Robinson’s favor by Division Two of this court. See id.8 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
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to a courtroom closure. See id. (citing State v. Smith, 181 Wn.2d 508, 516 n.10,
520, 334 P.3d 1049 (2014)). We determined there that “three off-record and
unmemorialized sidebars did not amount to courtroom closures” and that other
challenged sidebars, which were memorialized the day after they occurred, did not
implicate the public trial right. Id. slip op. at 17. Thus, no Bone-Club analysis was
required. See Smith, 181 Wn.2d at 520.
Robinson does not dispute that he is challenging the same sidebars we
addressed in his direct appeal, yet he does not show that the interests of justice
warrant revisiting our earlier determinations. Accordingly, he cannot renew his
challenge to the sidebars in his PRP. See In re Pers. Restraint of Gentry, 137
Wn.2d 378, 388, 972 P.2d 1250 (1999) (“In PRPs, we ordinarily will not review
issues previously raised and resolved on direct review. In order to renew an issue
rejected on its merits on appeal, the petitioner must show the ends of justice would
be served by reexamining the issue. This burden can be met by showing an
intervening change in the law or some other justification for having failed to raise
a crucial point or argument in the prior application.” (internal citations and quotation
marks omitted)).
Robinson disagrees and argues that “[t]he public trial claim is being raised
with additional content and in different content than what was raised on direct
appeal.” However, “a ‘petitioner may not create a different ground [for relief]
merely by alleging different facts, asserting different legal theories, or couching his
argument in different language.’” In re Pers. Restraint of Lord, 123 Wn.2d 296,
329, 868 P.2d 835 (1994) (alteration in original) (quoting Campbell v. Blodgett, 982
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F.2d 1321, 1326 (9th Cir. 1992)). And although Robinson now asserts that the
sidebars also implicated his right to be present at all critical stages of trial, he does
not establish an arguable basis for relief.
B. False Testimony
Robinson next claims that the prosecutor committed misconduct and
violated due process by using false testimony from a witness, Robert Smith, to
convict Robinson.9 To prevail on this claim, Robinson must show that (1) Smith’s
testimony was actually false, (2) the prosecutor knew or should have known that
the testimony was actually false, and (3) the false testimony was material. United
States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Robinson claims that Smith “testified fals[el]y, inconsist[e]nt to previous
testimony at [the] prior trial,[10] deposition and proffered interview.” In support,
Robinson relies on an excerpt from the trial transcript in which Smith, on cross-
examination, stated that a week before he testified, a detective and the prosecutor
visited him and informed him that his story “didn’t really match up” with phone
records. But Robinson does not specify what parts of Smith’s story he claims were
false, much less allege facts to show actual falsity or materiality. Robinson’s
conclusory assertion that the “false testimony was material as it was critical to the
9 The State asserts that we rejected this argument on its merits in Robinson’s first appeal.
The State is incorrect. We acknowledged that in a statement of additional grounds for review,
Robinson argued that Smith “offered false, tainted testimony” and Robinson was forced to testify
to refute that testimony. Rowland, No.49444-2-II, slip op. at 49. However, we concluded that this
argument was “too vague to inform us of the claimed error,” and thus, we did not address it on its
merits. Id.10 A prior trial ended in a mistrial because the jury could not unanimously agree on verdicts.
See Rowland, No.49444-2-II, slip op. at 5.
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State’s theory to place [Robinson] with [Smith] at the scene of the crime” is
insufficient to warrant collateral relief. See In re Pers. Restraint of Rice, 118 Wn.2d
876, 885–86, 828 P.2d 1086 (1992) (“[T]he petitioner must state in his petition the
facts underlying the claim of unlawful restraint and the evidence available to
support the factual allegations. . . . Bald assertions and conclusory allegations will
not support the holding of a hearing. Rather, with regard to the required factual
statement, the petitioner must state with particularity facts which, if proven, would
entitle him to relief.” (citation omitted) (emphasis added)).
C. Senate Bill 5288
Finally, Robinson argues in his petition that he is entitled to resentencing
because Robbery 2 no longer counts as a strike offense under SB 5288. But as
discussed, SB 5288 did not apply to Robinson and, in any event, Robinson is
entitled to resentencing under a later amendment to the SRA.
Robinson fails to establish an arguable basis for collateral relief given the
constraints of a PRP. Accordingly, his petition is frivolous and must be dismissed.
See RAP 16.11(b) (petition will be dismissed upon a determination that the issues
presented therein are frivolous); In re Pers. Restraint of Khan, 184 Wn.2d 679,
686–87, 363 P.3d 577 (2015) (“[A] personal restraint petition is frivolous where it
fails to present an arguable basis for collateral relief either in law or in fact, given
the constraints of the personal restraint petition vehicle.”).
We remand to the trial court to resentence Robinson consistent with RCW
9.94A.647 and Blake and to correct the record as necessary to reflect that the 2019
corrections to Robinson’s original J&S were not nunc pro tunc in nature. We
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dismiss Robinson’s PRP under RAP 16.11(b).
WE CONCUR:
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