State of Washington v. Olajide Adel Fletcher ( 2021 )


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  •                                                                          FILED
    OCTOBER 28, 2021
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON                           )
    )         No. 37661-3-III
    Appellant,               )
    )
    v.                                     )
    )
    OLAJIDE ADEL FLETCHER,                        )         PUBLISHED OPINION
    )
    Respondent.              )
    STAAB, J. — This case raises several issues of first impression pertaining to the
    collateral attack of a sentence. Olajide Fletcher pleaded guilty to a reduced charge of
    second degree assault with a firearm and one count of unlawful possession of a firearm.
    Pursuant to the plea agreement, the State recommended an exceptional sentence of 120
    months (the statutory maximum). The sentencing judge followed the recommendation.
    Shortly after sentencing Mr. Fletcher filed a motion to modify the judgment and sentence
    pursuant to CrR 7.8. Three years later, on July 15, 2019, Mr. Fletcher filed a second CrR
    7.8 motion, contending that the court miscalculated his offender score and standard range
    sentence before imposing the exceptional sentence. Following a series of hearings, the
    superior court granted Mr. Fletcher’s motion, holding that it was timely, good cause was
    shown for failing to bring the offender score issue in his first motion, and the
    No. 37661-3-III
    State v. Fletcher
    miscalculated offender score prejudiced Mr. Fletcher. At the resentencing hearing, the
    court imposed a high-end standard range sentence of 77 months.
    The State filed this direct appeal and we reverse the trial court’s decision. We
    hold that a judgment and sentence is facially invalid when it contains a miscalculated
    standard range even when the defendant receives the agreed-upon exceptional sentence.
    While Mr. Fletcher’s motion was not untimely, we conclude that it was successive
    because Mr. Fletcher did not establish good cause for failing to raise the issue in his first
    motion. Ordinarily, when the court of appeals determines that a collateral attack is timely
    but successive, we transfer the case to the Supreme Court. In this case, however, since
    the superior court addressed the motion on the merits, and we are reviewing the case in
    our appellate capacity and not as original jurisdiction, the transfer provisions of RAP
    16.5(c) do not apply and we retain appellate jurisdiction to decide the case. Because Mr.
    Fletcher’s motion was successive without good cause, we reverse the superior court’s
    order granting Mr. Fletcher’s motion and reinstate the original sentence.
    FACTS
    In November 2015, the State charged Olajide Adel Fletcher with one count of first
    degree assault with a firearm or deadly weapon. The charge alleged that Mr. Fletcher
    shot Alex Tauveve five times in the legs. According to Mr. Fletcher, Mr. Tauveve took
    Mr. Fletcher’s televisions and when Mr. Fletcher tried to recover the televisions, Mr.
    Tauveve pulled a gun on him. Mr. Fletcher overpowered Mr. Tauveve, taking the gun
    2
    No. 37661-3-III
    State v. Fletcher
    and shooting him. Mr. Fletcher and his girlfriend fled to Montana, where U.S. Marshalls
    took them into custody.
    The State agreed to reduce the first degree assault charge to second degree assault,
    and refrain from filing charges against Mr. Fletcher’s girlfriend if Mr. Fletcher would
    stipulate to an exceptional sentence of 120 months, the statutory maximum. The
    statement on plea of guilty identified Mr. Fletcher’s offender score as “8” on the second
    degree assault count, with a standard range of 53-70 months and a firearm enhancement
    of 36 months, and an offender score of “5” on the unlawful possession count, with a
    standard range of 41-54 months. The statement did not include Mr. Fletcher’s criminal
    history, although it indicated that it was attached as a separate document. The parties
    agreed that the prosecutor would recommend “an exceptional sentence/incarceration of
    84 months on Count 1 (with a three yr deadly weapon enhancement), 41 months on
    Count 2 to run concurrent, for a total of 10 years.” Clerk’s Papers (CP) at 14. Mr.
    Fletcher “agree[d] there are substantial and compelling reasons for an exceptional
    sentence in this case.” CP at 19.
    Mr. Fletcher was sentenced on February 23, 2016. His offender scores for the two
    charges were calculated as “8” and “5”, based on his criminal history of one adult
    conviction for first degree theft, a juvenile conviction for second degree assault, and
    juvenile convictions for two counts of attempted second degree assault. The parties also
    agreed that Mr. Fletcher had a prior third degree assault conviction that washed out.
    3
    No. 37661-3-III
    State v. Fletcher
    Based on the offender score, the parties calculated the standard range sentence as 89 to
    106 months. The sentencing court followed the recommendation and imposed an
    exceptional sentence of 120 months.1
    On March 18, 2016, Mr. Fletcher filed a motion to modify the judgment and
    sentence pursuant to CrR 7.8, seeking a standard range sentence of 106 months in
    confinement. The superior court transferred the motion to this court for consideration as
    a personal restraint petition. This court dismissed the petition as frivolous, noting that
    Mr. Fletcher stipulated to the exceptional sentence. Therefore he could not challenge the
    exceptional sentence he agreed to without challenging the entire plea agreement, which
    he did not do. See In re Pers. Restraint of Fletcher, No. 34430-4-III (Wn. Ct. App. Mar.
    3, 2017).
    Three years later Mr. Fletcher filed a second CrR 7.8 motion, arguing that the
    sentencing court incorrectly calculated his offender score, thus rendering his sentence
    unlawful. Specifically, he asserted that the court incorrectly included his two juvenile
    second degree attempted assaults from May 2006 in his offender score when those crimes
    should have washed out pursuant to RCW 9.94A.525(4) and State v. Moeurn, 
    170 Wn.2d 169
    , 
    240 P.3d 1158
     (2010). Mr. Fletcher argues that his correct offender score on the
    1
    Grant County Superior Court Judge David Estudillo accepted Mr. Fletcher’s
    guilty plea and followed the recommended 120-month exceptional sentence. The motion
    at issue in this appeal, and the subsequent resentencing, were heard by Judge John
    Antosz.
    4
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    State v. Fletcher
    second degree assault charge was 4, rather than 8, and the score for the unlawful
    possession of the firearm was 3 rather than 5.
    In response, the State argued that the motion was untimely, barred as successive
    under RCW 10.73.140, and failed to establish prejudice because the State and Mr.
    Fetcher negotiated the exceptional sentence as part of the plea agreement, with no
    reference to the offender score or standard range.
    Mr. Fletcher then responded by filing a declaration certifying that his previous
    petition did not present similar grounds and arguing that he had good cause for not
    raising the offender score in his previous petition because he did not have access to his
    judgment and sentence. Mr. Fletcher argued that the lack of access was “an external
    objective impediment” that prevented him from raising the issue. According to Mr.
    Fletcher, he requested a copy of his judgment and sentence from defense counsel, who
    told Mr. Fletcher he could not have the judgment in his personal possession when he was
    transferred to prison but that he would receive a copy when he arrived at the corrections
    center. Mr. Fletcher did not receive the judgment when he arrived at the corrections
    center, and when he requested his legal documents from the law librarian, he only
    received his statement on plea of guilty. Mr. Fletcher claims the plea statement listed his
    offender scores but did not contain any information regarding his criminal history, such
    as the dates of the crimes and the sentences. Mr. Fletcher asserted that he did not receive
    a copy of his judgment and sentence, containing his criminal history, until the State filed
    5
    No. 37661-3-III
    State v. Fletcher
    a response to his first personal restraint petition in July 2016. At that time, his motion
    was already filed and before this court for consideration.
    Ultimately, the superior court held that Mr. Fletcher’s judgment was facially
    invalid, and thus his motion was timely. The court also found good cause for not
    including the issue in his first motion. Finally, the court found prejudice, concluding that
    if the sentencing court had known the parties relied on an erroneous offender score and
    standard range when they negotiated the agreement, the sentencing court likely would
    have departed from the agreement and imposed a lower sentence. Accordingly, the court
    held that Mr. Fletcher was entitled to re-sentencing with the proper offender score and
    proper standard range. The court held that Mr. Fletcher’s stipulation to the firearm
    enhancement and the stipulation to the exceptional sentence remained in place and could
    not be withdrawn, but that Mr. Fletcher could argue for a sentence shorter than 120
    months. At resentencing, the court ordered a high-end standard range sentence of 77
    months.
    The State filed this timely appeal.
    ANALYSIS
    A.    WAS THE CRR 7.8 MOTION TIMELY?
    We are asked to decide whether the miscalculation of a petitioner’s offender score
    renders a judgment and sentence facially invalid when the trial court does not impose a
    standard range sentence but instead imposes the exceptional sentence recommended by
    6
    No. 37661-3-III
    State v. Fletcher
    the parties. We hold that when the miscalculation of an offender score and standard
    range sentence can be determined from the judgment,2 it renders the judgment facially
    invalid even when the court imposes the recommended exceptional sentence.
    Mr. Fletcher filed his collateral attack in superior court as a motion for relief from
    judgment under CrR 7.8(b). The procedures for filing such a motion are governed by
    chapter 10.73 RCW. CrR 7.8(b). Similar to other collateral challenges, a motion under
    CrR 7.8(b) may not 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.” RCW 10.73.090(1).
    “Generally, a judgment and sentence is facially invalid ‘if it exceeds the duration
    allowed by statute and the alleged defect is evident on the face of the document without
    further elaboration.’” State v. Chambers, 
    176 Wn.2d 573
    , 583-84, 
    293 P.3d 1185
     (2013)
    2
    The State concedes that the offender score was miscalculated and does not argue
    that calculating the offender score requires us to go beyond the face of the judgment and
    plea documents. The parties are correct that an incorrectly calculated offender score may
    render a judgment invalid on its face. See In re Goodwin, 
    146 Wn.2d 861
    , 867, 
    50 P.3d 618
     (2002) and In re LaChapelle, 
    153 Wn.2d 1
    , 6, 
    100 P.3d 805
     (2004) (“A sentence,
    which was improperly calculated using previously washed out juvenile offenses, is
    invalid on its face.”). In both of these cases, however, it appears that the washout could
    be determined from the information provided in the judgment and plea paperwork. This
    distinction was noted in In re Pers. Restraint of Rowland, 
    149 Wn. App. 496
    , 504, 
    204 P.3d 953
     (2009), which held that “[u]nlike in Goodwin, here there is nothing on the face
    of Rowland’s judgment and sentence to make it apparent that his offender score should
    have been two rather than three.” See also, In re Pers. Restraint of Banks, 
    149 Wn. App. 513
    , 515, 
    204 P.3d 260
     (2009) (Judgement was not facially invalid where calculation of
    offender score required court to consider documents beyond the judgment).
    7
    No. 37661-3-III
    State v. Fletcher
    (quoting In re Pers. Restraint of West, 
    154 Wn.2d 204
    , 211, 
    110 P.3d 1122
     (2005)). A
    judgment is facially “invalid” if the trial court exercised power that it did not have, most
    typically by exceeding its substantive or statutory authority, as opposed to its procedural
    authority. In re Pers. Restraint of Flippo, 
    187 Wn.2d 106
    , 110, 
    385 P.3d 128
     (2016); In
    re Pers. Restraint of Snively, 
    180 Wn.2d 28
    , 32, 
    320 P.3d 1107
     (2014); In re Pers.
    Restraint of Coats, 
    173 Wn.2d 123
    , 136, 
    267 P.3d 324
     (2011).
    Because this is a collateral attack, it is not enough to point out an error that may be
    obvious on the face of the judgment. In Coats, the court rejected the petitioner’s
    argument that any error of law, such as an error concerning the maximum possible
    sentence renders the judgment and sentence facially invalid. Id. at 135. Instead, the
    court held that a judgment is invalid “only where a court has in fact exceeded its statutory
    authority in entering the judgment or sentence.” Id. While the sentencing court misstated
    the maximum possible sentence for one of the convictions, it nevertheless handed down a
    sentence within the standard range for that charge. Therefore, while Coats could point to
    error, the sentencing court did not exceed its statutory authority, and the judgment was
    facially valid. Id. at 143.
    Examples of facially invalid judgments include cases where the sentence exceeded
    the duration allowed by statute. In re Pers. Restraint of McWilliams, 
    182 Wn.2d 213
    ,
    215 n.2, 
    340 P.3d 223
     (2014); In re Pers. Restraint of Tobin, 
    165 Wn.2d 172
    , 176, 
    196 P.3d 670
     (2008). A judge’s notation on the judgment that the defendant waived early
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    No. 37661-3-III
    State v. Fletcher
    release was beyond the court’s authority and rendered the judgment facially invalid.
    West, 
    154 Wn.2d at 211-12
    . A conviction for a then-nonexistent crime is also facially
    invalid. In re Pers. Restraint of Hinton, 
    152 Wn.2d 853
    , 857, 
    100 P.3d 801
     (2004); In re
    Pers. Restraint of Knight, 4 Wn. App. 2d 248, 252-53, 
    421 P.3d 514
     (2018).3
    On the other hand, errors that do not affect the petitioner’s rights or sentence do
    not render a judgment and sentence facially invalid. In Toledo-Sotelo, the trial court
    miscalculated the petitioner’s offender score but ultimately imposed a sentence within the
    correct standard range. In re Pers. Restraint of Toledo-Sotelo, 
    176 Wn.2d 759
    , 767, 
    297 P.3d 51
     (2013). “For a judgment to exceed the court’s statutory authority, we require
    more than an error that ‘invite[s] the court to exceed its authority’; the sentencing court
    must actually pass down a sentence not authorized under the [Sentencing Reform Act]
    SRA.” Id. at 767 (quoting Coats, 
    173 Wn.2d at 136
    ). Because the court reached the
    correct result required by the SRA, the procedural error of miscalculating the offender
    score did not render the judgment facially invalid. Id. at 768.
    More recently, our Supreme Court has clarified the distinction between
    substantive authority and procedural requirements. In Flippo, the court held that failing
    3
    In Finstad, the State stipulated that lack of findings to support an exceptional
    sentence rendered the judgment facially invalid. In re Pers. Restraint of Finstad, 
    177 Wn.2d 501
    , 505-06, 
    301 P.3d 450
     (2013). The court accepted the stipulation, noting
    that the parties were not meaningfully adverse in the issue. 
    Id.
     Given the lack of
    opposition, it is hard to say that Finstad stands for the proposition that the lack of
    findings renders a judgment invalid.
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    No. 37661-3-III
    State v. Fletcher
    to conduct an individualized inquiry into a criminal defendant’s ability to pay legal
    financial obligations (LFOs) does not render the imposition of legal fees facially invalid.
    
    187 Wn.2d at 110
    . “The specific grant of authority to impose discretionary LFOs and the
    duty to engage in an individualized financial inquiry regarding a defendant’s present and
    future likely ability to pay are distinct components of the discretionary LFO statute, and
    only the former has any bearing on the question of facial validity.” 
    Id. at 110
    .
    Collectively, these cases hold that a court exceeds its authority when it
    miscalculates the standard range, resulting in a sentence outside the correct standard
    range, or when the sentence exceeds the statutory maximum for a crime. Mr. Fletcher’s
    case falls in the middle. The parties miscalculated his standard range but stipulated to
    facts sufficient to impose an exceptional sentence. Since the exceptional sentence was
    not “based on” the miscalculated standard range, we must decide whether the exceptional
    sentence nevertheless exceeded the court’s authority, rendering the judgment facially
    invalid. In other words, is the miscalculation of a standard range before imposing an
    exceptional sentence a procedural error or a substantive error?
    To answer this question, we turn to the court’s authority under the SRA. A court
    may impose an exceptional sentence above the standard range “if it finds, considering the
    purpose of this chapter, that there are substantial and compelling reasons justifying an
    exceptional sentence.” RCW 9.94A.535 (emphasis added). In State v. Parker, the
    Supreme Court held that the SRA’s “purpose” included proportionality, which
    10
    No. 37661-3-III
    State v. Fletcher
    necessarily requires consideration of the presumptive sentence or standard range. 
    132 Wn.2d 182
    , 187 n.6, 
    937 P.2d 575
     (1997). Consequently, a sentencing court must
    correctly determine the standard range or presumptive sentence before imposing an
    exceptional sentence. Id. at 188. In this case, the superior court relied on the holding in
    Parker to find the judgment in Mr. Fletcher’s case facially invalid.
    As the State points out, however, Parker was a direct appeal and only considered
    whether the failure to correctly calculate the standard range was legal error. Parker did
    not determine whether a court exceeds its authority by imposing an exceptional sentence
    after incorrectly calculating the standard range. In Parker, the court held that the findings
    necessary to impose an exceptional sentence must include a correctly calculated standard
    range. The State argues that Parker establishes a procedural rule, not a substantive rule
    because calculating the standard range is simply a step toward imposing an exceptional
    sentence that is not based on the standard range. As the State points out, while Parker
    held it was error to miscalculate the standard range before imposing an exceptional
    sentence, it did not hold that a court exceeds its authority when it fails to take this step.
    While the State’s characterization of Parker is correct, several other Supreme
    Court decisions strongly suggest that a court does exceed its statutory authority when its
    findings do not support an exceptional sentence. In Goodwin, the court found a judgment
    to be facially invalid when the sentence imposed was based on an offender score that
    incorrectly included washed-out juvenile offenses. In re Pers. Restraint of Goodwin, 146
    11
    No. 37661-3-III
    State v. Fletcher
    Wn.2d 861, 865-67, 
    50 P.3d 618
     (2002). The court reasoned that because Goodwin’s
    offender score was miscalculated, his standard range was miscalculated, and the sentence
    imposed by the trial court exceeded the standard range.
    While Goodwin is similar to this case, as the State points out, it is not controlling
    because the sentencing court in Goodwin was attempting to impose a standard range
    sentence. Id. at 864. Significantly, however, the sentence actually imposed in Goodwin
    was above the (correctly calculated) standard range. In other words, it was an
    exceptional sentence. Implicit in Goodwin’s holding is the conclusion that a sentence
    above the (correct) standard range, without the necessary findings, exceeds the court’s
    authority and is facially invalid. See Toledo-Sotelo, 
    176 Wn.2d at 768
     (In Goodwin, 
    146 Wn.2d at 877-78
    , “[t]his court held that the sentence exceeded the court’s statutory
    authority because it was ‘based upon a miscalculated offender score (miscalculated
    upward).’”).
    The Supreme Court has similarly found that a court exceeds its authority when the
    jury’s verdict did not support the sentence enhancement imposed by the court. In Scott,
    the Supreme Court considered whether the petitioner’s sentence, based on a firearm
    enhancement, was facially invalid when the jury’s verdict only found a deadly weapon
    enhancement. In re Pers. Restraint of Scott, 
    173 Wn.2d 911
    , 
    271 P.3d 218
     (2012). In
    other words, the finding (by the jury) was insufficient to support the sentence
    enhancement actually imposed. Ultimately, the court found that since the verdict did not
    12
    No. 37661-3-III
    State v. Fletcher
    support the application of the enhancement, the judgment was facially invalid. 
    Id.
     at 917-
    18.
    Finally, in Chambers, the Supreme Court found a judgment to be facially invalid
    when the defendant received an exceptional sentence and there were no written findings
    of fact and conclusions of law setting forth the reasons for the exceptional sentence as
    required by the SRA. Chambers, 
    176 Wn.2d at 584
    .
    The collective holdings of Goodwin, 
    146 Wn.2d 861
    , Parker, 
    132 Wn.2d 182
    ,
    Scott, 
    173 Wn.2d 911
    , and Chambers, 
    176 Wn.2d 573
    , suggest that a sentencing court
    exceeds its authority when it imposes an exceptional sentence that is not supported by
    necessary findings. The findings necessary to impose an exceptional sentence include a
    correctly calculated standard range. Since the standard range in this case was incorrectly
    calculated, the sentencing court exceeded its authority by imposing an exceptional
    sentence. Because the court exceeded its authority, the judgment is facially invalid and
    Mr. Fletcher’s motion under CrR 7.8(b) is timely.
    B.    DOES MR. FLETCHER DEMONSTRATE GOOD CAUSE FOR FAILING TO INCLUDE THE
    OFFENDER SCORE ISSUE IN HIS FIRST MOTION?
    Having determined that the one-year time bar does not apply to Mr. Fletcher’s
    collateral attack, we must next decide whether he is exempt from the bar on successive
    petitions. After he was sentenced, Mr. Fletcher filed a motion to modify the judgment
    and sentence pursuant to CrR 7.8, seeking a standard range sentence of 106 months. The
    13
    No. 37661-3-III
    State v. Fletcher
    Superior court transferred the motion to this court for consideration as a personal restraint
    petition. This court dismissed the petition as frivolous, noting that Mr. Fletcher stipulated
    to the exceptional sentence.
    Mr. Fletcher filed the current action in superior court as a motion for relief from
    judgment under CrR 7.8(b).4 Motions under this rule are considered a form of collateral
    attack and are subject to the provisions against successive petitions under RCW
    10.73.140. In re Pers. Restraint of Becker, 
    143 Wn.2d 491
    , 496, 
    20 P.3d 409
     (2001).
    Under RCW 10.73.140, a second or subsequent collateral attack will not be considered
    unless the petitioner certifies, “that he or she has not filed a previous petition on similar
    grounds, and shows good cause why the petitioner did not raise the new grounds in the
    previous petition.” In this second motion, the parties agree that Mr. Fletcher’s offender
    score issue is new and was not raised in his first petition. The parties disagree, however,
    on whether he has demonstrated good cause for failing to raise this issue in his first
    motion for relief from judgment.
    The term “good cause” is not defined in the statute. Instead, our courts have
    adopted a definition of “good cause” as that term has been used in other settings. For
    example, one way to show good cause is to demonstrate that there has been a significant
    4
    CrR 7.8(b): “The motion shall be made within a reasonable time and for reasons
    (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or
    taken, and is further subject to RCW 10.73.090, .100, .130, and .140.”
    14
    No. 37661-3-III
    State v. Fletcher
    intervening change in the law. In re Pers. Restraint of Johnson, 
    131 Wn.2d 558
    , 567,
    
    933 P.2d 1019
     (1997).
    “Good cause” has also been defined to include an “external objective
    impediment,” as opposed to a “self-created hardship.” State v. Crumpton, 
    90 Wn. App. 297
    , 302, 
    952 P.2d 1100
     (1998) (quoting State v. Dearbone, 
    125 Wn.2d 173
    , 180-81, 
    883 P.2d 303
     (1994)). In Crumpton, the petitioner filed a motion for a new trial alleging
    newly discovered evidence in the form of hearsay statements from witnesses. After this
    motion was denied, the petitioner filed another motion for a new trial or relief from
    judgment, this time submitting first-hand declarations from witnesses and alleging newly
    discovered evidence. The petitioner alleged he had good cause for not including the first-
    hand declarations in his first motion in that he was incarcerated, indigent, and could not
    locate the witnesses. After adopting a definition of “good cause” from RCW 10.95.040,
    the notice of intention to seek a death penalty statute, the court found that Crumpton’s
    reasons were self-created hardships not otherwise caused by external objective
    impediments. 
    Id. at 302
    . Thus, Crumpton’s second petition was successive and properly
    dismissed.
    Since Crumpton was decided in 1998, there have not been any published cases
    further defining good cause as used in RCW 10.73.140. In this case, Mr. Fletcher does
    not allege that a material intervening change in the law provided good cause. Instead, he
    contends that his failure to raise the offender score issue in his first petition was due to an
    15
    No. 37661-3-III
    State v. Fletcher
    external objective impediment. Specifically, he contends that he was not given a copy of
    his judgment at sentencing and did not have a copy when he filed his first petition. The
    Superior Court accepted Mr. Fletcher’s reason as good cause. The court distinguished
    Crumpton by noting that Crumpton dealt with a similar issue raised in successive
    motions, whereas Fletcher was raising a new issue.
    We disagree with the Superior Court’s analysis of the law and application to the
    facts. The statute requires a second petition to raise new issues and show good cause for
    not raising them in the first petition. RCW 10.73.140. The superior court’s analysis
    seems to conflate the two factors. While the successive motions in Crumpton addressed a
    similar issue, the case is relevant for its legal analysis on good cause. The court defined
    good cause and then applied that definition to the facts of the case. The similarities
    between the two motions were relevant in the application, not the holding.
    Applying the definition of good cause in this case, we find that Mr. Fletcher’s
    reasons for not including his offender score issue in his first petition are not convincing
    and are self-created. Mr. Fletcher’s argument was legally and factually available to him
    when he filed his first petition. His plea statement identified his offender score as 8 and
    5, and also indicated that a copy of his criminal history was attached. Significantly, Mr.
    Fletcher received a copy of his judgment in July or August 2016 as part of the State’s
    response to his first petition. If access to the judgment was the issue, Mr. Fletcher could
    have amended his first petition after obtaining a copy. RAP 16.8(e); In re Pers. Restraint
    16
    No. 37661-3-III
    State v. Fletcher
    of Meredith, 
    191 Wn.2d 300
    , 
    422 P.3d 458
     (2018). Instead, he waited almost three years
    after receiving a copy of the judgment before filing a second motion for relief. While we
    decline at this time to incorporate a requirement of due diligence into the definition of
    good cause, we agree that the considerable lapse in time discredits Mr. Fletcher’s
    purported reason.
    Since we find that Mr. Fletcher has failed to show good cause for not including the
    offender score issue in his first motion, we conclude that his second motion is successive
    and barred by the requirements of RCW 10.73.140 as applied through CrR 7.8(b).
    C.    REMEDY.
    Having decided that Mr. Fletcher’s motion is timely but successive, we must
    decide the remedy. Both the State and Mr. Fletcher suggest that since the successive
    petition bar under RCW 10.73.140 only applies to the Court of Appeals, we should
    transfer this case to the Supreme Court. See RAP 16.3 (Supreme Court and Court of
    Appeals have original concurrent jurisdiction over personal restrain petitions not
    involving the death penalty).
    This recommendation misconstrues the status of this case. Mr. Fletcher’s motion
    was filed in superior court and decided on the merits. It comes to us on direct appeal, not
    as a transfer. The jurisdictional limitations of RCW 10.73.140 apply to personal restraint
    petitions filed as an original action in the court of appeals. Because we review this case
    in our appellate capacity, not as an original action, the transfer provisions of RAP 16.5(c)
    17
    No. 37661-3-III
    State v. Fletcher
    do not apply. While there are no published cases recognizing this procedural process, in
    an unpublished decision we followed this course after direction from the Supreme Court.
    See State v. Yates, No. 33703-1-III, slip op. at 1 (Wash. Ct. App. Jul. 11, 2017)
    (unpublished), http://courts.wa.gov/opinions/pdf/337031_unp.pdf (citing Order, State v.
    Yates, No. 93772-9 (Wash. Jan. 5, 2017)).
    We grant the State’s appeal, reverse the superior court’s decision granting Mr.
    Fletcher’s CrR 7.8 motion, and direct the superior court to reinstate the original judgment
    and sentence.
    _________________________________
    Staab, J.
    WE CONCUR:
    _________________________________
    Pennell, C.J.
    _________________________________
    Siddoway, J.
    18