In the Matter of the Personal Restraint of: Guadalupe Martinez-Cervantes ( 2021 )

FILED
AUGUST 12, 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
In the Matter of the Personal Restraint of: ) No. 38065-3-III
)
)
GUADALUPE MARTINEZ-CERVANTES, )
) UNPUBLISHED OPINION
Petitioner. )
)
FEARING, J. — Guadalupe Martinez-Cervantes seeks relief from personal
restraint imposed for his 2019 Franklin County convictions in two separate cases for
felony violation of a no contact order, possessing a stolen motor vehicle, attempting to
elude, and unlawful possession of a controlled substance. Martinez-Cervantes requests
vacation of the count of unlawful possession of a controlled substance and resentencing
on his remaining convictions, with recalculation of his offender score to exclude points
derived from his conviction for unlawful possession of a controlled substance. The State
concedes the need for vacation of the single count and resentencing on the remaining
counts. This court accepts the State’s concession.
No. 38065-3-III
PRP of Martinez-Cervantes
In State v. Blake, 197 Wn.2d 170, 182-83, 186, 481 P.3d 521 (2021), the Supreme
Court held that Washington’s strict liability drug possession statute, former RCW
69.50.4013(1), violated state and federal due process clauses and was therefore void. The
Supreme Court did not specify whether its ruling applied to cases already final. But,
established precedent counsels that Blake applies to such cases.
In a personal restraint petition, this court cannot grant relief when the petition is
filed more than one year after the judgment became final unless the sentence is invalid on
its face, the trial court lacked competent jurisdiction, or the petition is based solely on one
or more of the exceptions set forth in RCW 10.73.100(1)-(6). Guadalupe Martinez-
Cervantes’ petition fits within the facial invalidity exception to RCW 10.73.090(1).
For a claim to fit within the facial invalidity exception, the alleged error must be
apparent on the face of the documents signed as a part of the sentence and any plea
agreement. In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240(2000). Because the former possession statute is void, because a defendant cannot be
convicted based on a void statute, and because a void conviction cannot be included in a
defendant’s offender score, this court need not look any further than the face of
Guadalupe Martinez-Cervantes’ judgments and sentences to determine that his offender
score is erroneous and that the current conviction for unlawful possession of a controlled
substance is also void. State v. Carnahan, 130 Wn. App. 159, 164, 122 P.3d 187 (2005);
State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986).
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No. 38065-3-III
PRP of Martinez-Cervantes
Accordingly, Martinez-Cervantes’ judgments and sentences are facially invalid and his
petition is exempt from the time-bar. We may review the judgments and sentences on
their merits. RCW 10.73.090(1).
In the personal restraint context, this court will only grant relief for constitutional
errors resulting in actual and substantial prejudice. In re Personal Restraint of Cook, 114
Wn.2d 802, 813, 792 P.2d 506 (1990). Because a person cannot be punished for
violating a void statute and because a sentence that is based upon an incorrect offender
score is a fundamental defect that inherently results in a miscarriage of justice, Guadalupe
Martinez-Cervantes also suffers actual and substantial prejudice. In re Personal
Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618 (2002). Therefore, this court
grants Martinez-Cervantes’ petition for relief and remands the case to the trial court for
resentencing in accordance with Blake. RAP 16.4(a).
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.
_________________________________
Fearing, J.
WE CONCUR:
_________________________________ ________________________________
Pennell, C.J. Lawrence-Berrey, J.
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